11:00 AM
Docket 24
1/3/2018
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 57.92 Trustee Expenses: $ 7.67
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Abraham Meza Jr. Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
CASE DISMISSED 12/14/17
EH
Docket 23
BACKGROUND
On October 18, 2017, Alma Ramos ("Debtor") filed a skeletal Chapter 7 voluntary petition. On November 16, 2017, Santiago Properties, Inc. ("Landlord") filed a motion for relief from the automatic stay. On November 22, 2017, Debtor filed her opposition to Landlord’s motion. On December 1, 2017, the Court entered an order granting the motion.
On December 7, 2017, Debtor filed a motion to set aside the order granting relief from the automatic stay. Subsequently, on December 14, 2017, Debtor’s case was dismissed for failure to appear at either of the first two meetings of creditors.
DISCUSSION
As a preliminary matter, the Court notes that the instant motion was served
11:00 AM
improperly. Specifically, the motion was not served on the Trustee, UST, and was served to Landlord at a PO Box, instead of on Landlord’s attorney.
Additionally, the motion is blank – Debtor does not provide any argument or evidence as required by Local Rule 9013-(1)(c)(3). Because of the absence of any argument or evidence, and, additionally, because of the improper service, the Court cannot grant Debtor’s motion.
TENTATIVE RULING
The Court will DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Alma Delia Ramos Pro Se
Movant(s):
Alma Delia Ramos Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
EH
Docket 222
BACKGROUND
On September 30, 2013, Charles Biehl ("Debtor") filed a Chapter 7 voluntary petition. Among the assets disclosed in the petition was certain real property located at 6 Dover Ct., Rancho Mirage, CA 92270 (the "Property"). Debtor valued the Property at
$1,050,000, identified liens on the Property in the amount of $851,226, and claimed an exemption in the Property in the amount of $75,000. Trustee however, asserts that his Broker Price Opinion valued the Property at $875,000, and additionally asserts that a preliminary title report reveals secured debt affecting the Property in the total amount of $1,326,889.79.
On August 5, 2016, JP Morgan Chase Bank ("Creditor") filed a motion for relief from the automatic stay. Debtor filed his opposition on September 6, 2016. On January 12, 2017, Creditor and Debtor entered into a stipulation providing Creditor relief from the automatic stay effective February 25, 2017.
Shortly after Creditor filed its motion for relief from the automatic stay, Trustee filed a notice of proposed abandonment of the Property. No opposition was received by the Court, and, as a result, the Property was deemed abandoned pursuant to Local Rule
11:00 AM
6007-(1)(d).
Trustee states that he currently has an offer to purchase the Property, subject to all liens, by Marta Rudat, the stepmother of Nicole Rudat,1 for $145,000. Trustee estimates that such a sale would net $64,100 in proceeds for the estate. Trustee requests revocation of his abandonment of the Property. On December 19, 2017, Debtor filed his opposition to the request. On December 27, 2017, Trustee filed a reply.
DISCUSSION
Trustee argues that revocation of the abandonment of the Property is appropriate under Fed. R. Civ. P. Rule 60(b)(1)-(2), (6), incorporated into bankruptcy proceedings by Fed. R. Bankr. P. Rule 9024. Debtor argues that: (1) revocation of an abandonment of property is inappropriate in general; (2) that Trustee is time-barred from relying on Fed. R. Civ. P. Rule 60(b)(1)-(2); and (3) that Fed. R. Civ. P. Rule 60(b)(6) is inappropriate in this circumstance.
As a preliminary matter, the Court notes that Debtor is clearly correct in his argument that Trustee is time-barred from relying on Fed. R. Civ. P. Rule 60(b)(1)-(2). Fed. R. Civ. P. Rule 60(c) provides that motions under Fed. R. Civ. P. Rule 60(b)(1)-(3) must be made within one year. Here, Trustee’s motion was filed well more than one year after the abandonment of the Property. It would appear that Trustee concedes that point as Trustee’s reply contains no further argument regarding Fed. R. Civ. P. Rule 60(b)(1)-(2).
11 U.S.C. § 554, Fed. R. Bankr. P. Rule 6007 and Local Rule 6007 govern abandonment of property. None of the provisions, however, mention revocation of the abandonment of property, and there is no clearly defined process to secure a revocation of abandonment of property.
11:00 AM
Trustee has acknowledged that "[g]enerally, abandonment of an asset is irrevocable" but asserts that "it may be revoked when appropriate circumstances exist." The Court agrees. While not cited by either party, the Ninth Circuit has previously stated that: "[r]evocation of abandonment is appropriate, however, where the trustee is given incomplete or false information of the asset by the debtor, thereby foregoing a proper investigation of the asset." Cusano v. Klein, 264 F.3d 936, 946 (9th Cir. 2001) (quotation omitted). The Ninth Circuit’s position in Cusano would seem to foreclose the argument that revocation of abandonment of property can never be effectuated.
Nevertheless, it remains unclear when, and in what circumstances, revocation of an abandonment of property is appropriate. See generally Ginsberg & Martin on Bankruptcy § 5.06[B][2] (5th ed. 2017) (collecting cases). Trustee has identified three circumstances in which he believes revocation to be appropriate: (1) false or incomplete information provided by a debtor (as noted by Cusano, supra); (2) an unscheduled asset; and (3) when abandonment occurs as a result of mistake or inadvertence and revocation will not cause undue prejudice.
Assuming, arguendo, that Trustee’s position is correct, the Court does not believe that the any of the enumerated circumstances exist here. But see In re Am.
Remanufacturers, Inc., 439 B.R. 633, 636 (Bankr. D. Del. 2010) (quoting Woods v.
Kenan, 173 F.3d 770, 778 (10th Cir. 1999) (standard for revocation of express abandonment is higher than standard for revocation of technical abandonment). First, while Trustee has asserted that Debtor testified inconsistently regarding the Property, the simple fact is that Debtor appears to have originally overestimated the estate’s interest in the Property on his schedules. As outlined in Trustee’s motion, after further investigation the Trustee concluded that the Property was worth less, and that the liens on the property were substantially greater, than indicated by Debtor. Therefore, to the extent that Debtor did provide any false or incomplete information to Trustee, such information certainly did not impede a proper investigation of the asset. Additionally, it is undisputed that the Property was scheduled.
In the motion, Trustee seems to entirely rely on the fact that abandonment was a "mistake" and that it would be equitable to revoke abandonment. First of all, the Court
11:00 AM
notes that "mistake" as a grounds for relief is tied to Fed. R. Civ. P. Rule 60(b)(1) and, as noted earlier, the Trustee is time-barred from moving under Rule 60(b)(1). See In re Sas, 488 B.R. 178, 184 (Bankr. D. Nev. 2013); In re Johnson, 361 B.R. 903, 910
(Bankr. D. Mont. 2007) ("The Court will not consider whether the trustee abandoned the assets as a result of mistake or inadvertence that may allow the Court to consider the elements of Fed. R. Bankr. P. Rule 9024, incorporating Fed. R. Civ. P. Rule 60(b) (1), as the motion to reopen and the motion for turnover have clearly been filed more than one year after Debtors’ case was closed on June [] 27, 2003.").
Additionally, the Court notes that Trustee’s abandonment of the Property was not a result of mistake or inadvertence. See In re Bartels, 449 B.R. 355 (Bankr. W.D. Wis. 2011); Matter of Alt, 39 B.R. 902 (Bankr. W.D. Wis. 1984) (both discussing mistake and inadvertence in the context of abandonment of property). Trustee has provided no evidence that he mistakenly calculated the estate’s interest in the Property or that any other error caused the abandonment of the Property. Instead, the "mistake" alleged by Trustee is that he was unaware that he would receive an offer to purchase the property that appears to be disproportional to the value of the interest being purchased. If Trustee was not time-barred from pursuing the desired relief under Fed. R. Civ. P. Rule 60(b)(1), the circumstances identified by Trustee would not constitute the "mistake or inadvertence" contemplated by the provision.
Finally, the Court notes that the argument offered by Trustee under Fed. R. Civ. P. Rule 60(b)(6) is unclear and less than convincing. In the original motion, Trustee seems to assert that the estate, the buyer, and the Debtor would all benefit from a revocation of the abandonment. After Debtor opposed the motion, Trustee’s appears to have switched his position, although the details of Trustee’s new argument are less than clear. Trustee states that: "[h]ad the Trustee known before that Rudat or the proposed Buyer (Rudat’s stepmother) were interested in purchasing the Property subject to existing liens, the Trustee would not have abandoned it." While this is undoubtedly an accurate statement, these circumstances do not warrant relief under Rule 60(b)(6). To hold otherwise would be to create an exception that swallows the rule, opening up the possibility of abuse in a variety of situations.
At the time of the abandonment of the Property, the Trustee had conducted an investigation of the Property and determined that the property was of inconsequential value to the estate. There is no indication that the evidence relied upon by Trustee at
11:00 AM
that time was materially inaccurate, and it appears that the Trustee’s determination was correct. When a trustee makes a determination that an asset of the estate is of inconsequential value and abandons that assets, but later attempts to revoke the abandonment of the asset to allows for its administration, it is logically necessary that one of two things must be true: (1) the trustee’s original determination that the asset was of inconsequential value must have been erroneous; or (2) the proposed buyer must be offering consequential value for an interest of inconsequential value. In the former situation, the trustee may potentially use Fed. R. Civ. P. Rule 60(b)(1).
Trustee’s position that the latter situation is covered by Fed. R. Civ. P. Rule 60(b)(6) would seem to create a situation where the Trustee could secure revocation of abandonment of an asset in virtually all situations. But, as noted earlier and acknowledged by Trustee, abandonment of an asset is final except in limited circumstances. See generally Ginsberg & Martin on Bankruptcy § 5.06[B][2] (5th ed. 2017) ("A trustee’s abandonment is final and irrevocable unless based on fraud.").
Because the position advanced by Trustee would appear to create an exception that swallows the rule, and because Trustee has not pointed to any exceptional circumstances that would warrant relief under Rule 60(b)(6), the Court is inclined to DENY the motion.
TENTATIVE RULING
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Charles Frederick Biehl Represented By
Daryl L Binkley - DISBARRED - Steven L Bryson
Movant(s):
John P Pringle (TR) Represented By James C Bastian Jr
11:00 AM
Trustee(s):
Elyza P Eshaghi Brandon J Iskander Lynda T Bui Leonard M Shulman
John P Pringle (TR) Represented By James C Bastian Jr Elyza P Eshaghi Brandon J Iskander Lynda T Bui
Leonard M Shulman
2:00 PM
Adv#: 6:17-01006 Pringle v. Qadir et al
From: 3/8/17, 6/28/17, 8/30/17, 11/1/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Defendant(s):
Walie A. Qadir Represented By Batkhand Zoljargal
Marym Qadir Represented By
Batkhand Zoljargal
Najlla Qadir Represented By
Batkhand Zoljargal
Plaintiff(s):
John P. Pringle Represented By Carmela Pagay Todd A Frealy
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 11/26/14, 1/26/15, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 1/27/16, 6/29/16, 9/28/16, 11/16/16, 2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 7/31/17, 10/4/17
Also #6 EH
Docket 1
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
2:00 PM
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
(Holding date)
From: 11/5/14, 12/3/14, 12/15/14, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 1/27/16 6/29/16, 9/28/16, 11/16/16, 2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 7/31/17,
10/4/17
Also #5 EH
Docket 10
07/31/2017
BACKGROUND
On October 25, 2013, Douglas Jay Roger ("Debtor") filed his petition for chapter 7 relief. On September 22, 2014, Revere Financial Corporation ("Revere") and Jerry Wang ("Receiver") filed a complaint for determination of the dischargeability of debts pursuant to §§ 523(a)(2)(B), 523(a)(2)(A), 523(a)(4)(A), 523(a)(4) & 523(a)(6); and objecting to the Debtor’s discharge pursuant to §§727(a)(3), 727(a)(4)(A), 727(a) (4)(B), 727(a)(5), & 727(a)(7) ("Complaint").
On October 6, 2014, the Debtor filed a Motion to Dismiss, to Strike, and for a More Definite Statement ("Motion"). The operative pleadings are as follows:
Memorandum by Jerry Wang in Opposition to Motion (Docket No. 13);
Memorandum by Secured Creditor Revere in Opposition to Motion (Docket No. 14);
Reply of Debtor to Jerry Wang’s Opposition (Docket No. 15);
Reply of Debtor to Revere & Jerry Wang’s Opposition (Docket No. 16);
Debtor’s Supplemental Brief (Docket No. 19); and
2:00 PM
Chapter 7 Trustee’s Opposition to Motion (Docket No. 34).
DISCUSSION
Civil Rule 12(b)(6) standards
Under Civil Rule 12(b)(6), made applicable in adversary proceedings through Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a Civil Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). However, the trial court need not accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under Civil Rule 12(b)(6), a plaintiff must aver in the complaint "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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under Civil Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson
Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
The Debtor asserts primarily that (1) the Receiver has no "authority" to bring the action; and (2) to the extent that Revere’s claim for damages includes fees and expenses incurred by the Receiver in its claim for damages, such claim is not proper because neither the Debtor nor Revere is obligated for the Receiver’s fees and expenses. To the extent the Debtor prevails on this second argument, the Debtor also requests that the claim of Revere for fees and expenses incurred by the Receiver be stricken, and that Revere be required to set forth a more definite statement of its damages.
The Receiver’s "Authority" to Bring the Action Against the Debtor
A. The Receiver Needed Authority from the Appointing Court to bring an
2:00 PM
Action
Once a court appoints a receiver, "[i]t is the rule that: ‘The functions and powers
of a receiver are controlled by statute, by the order appointing him, and by orders subsequently made by the court. He has no powers beyond those so
conferred.’ Downtown Sunnyvale Residential LLC v. Wells Fargo Bank, N.A., No. H038572, 2015 WL 263727, at *9 (Cal. Ct. App. Jan. 20, 2015) (citing 42 Cal.Jur.2d, Receivers, § 73; and see authority there collected.)" (Morand v. Superior Court (1974) 38 Cal.App.3d 347, 351 (Morand ).) "Where a receiver's powers and duties are not directly prescribed by statute, they are dependent upon the court's order of appointment." (Nulaid Farmers Assn. v. LaTorre (1967) 252 Cal.App.2d 788, 791.) A receiver's powers " ‘may be expanded or contracted by subsequent court order.’ " (Resolution Trust Corp. v. Bayside Developers (9th Cir.1994) 43 F.3d 1230, 1242 (Resolution Trust Corp.), citing to Cal–American Income Property Fund VII v. Brown Development Corp. (1982) 138 Cal.App.3d 268, 273 (Cal–American ).)
The Debtor cites to Cal. C.C.P. § 568 (CCP 568) and to Morand regarding the powers of receivers for the proposition that the Receiver has no authority to bring the instant action. CCP 568 provides, in pertinent part, that
The receiver has, under the control of the Court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the Court may authorize.
The Debtor argues that because the order appointing the Receiver did not enumerate the authority to file lawsuits as a power authorized by the Court, that the Receiver is without such authority until such time as he receives authorization from the Superior Court to file this action. Although authorities are scant, the authorities cited by the Debtor and found by this Court support the conclusion that for the Receiver to institute an action, the order appointing the Receiver must at a minimum contain language generally, if not specifically, authorizing/directing the commencement of actions. See e.g.
Harting v. Cebrian, 10 Cal. App. 2d 10, 51 P.2d 195 (1935).
The Receiver, for his part, argues that he was directed to manage the
2:00 PM
receivership estate, including to "take possession, custody, and control" of various assets that comprise the "Receivership Estate" and to "[c]ollect all proceeds of the Receivership Estate, whether equity, income, payments, rents, revenue, sale, or otherwise." (Receiver Opp’n at 2). This language, however, is insufficient for the purpose of authorizing the Receiver to initiate legal actions. See e.g. Harting v.
Cebrian, 10 Cal. App. 2d 10, 51 P.2d 195 (1935). In support of its position, the
Receiver cites Title Ins. & Tr. Co. v. Grider, 152 Cal. 746, 94 P. 601 (1908). However, Grider dealt with two issues not present in the instant action – first, an attack on the underlying basis for the appointment of a receiver, and second, an assertion that the property at issue was not property that the Receiver was authorized to collect. Neither issue resolves the issue of whether the language of a receivership order authorizes the initiation of an action.
Based on the foregoing, the Court finds that the failure of the Receiver to allege that the receivership order provided him with the authority to initiate actions on behalf of the Receivership Estate is grounds for dismissal.
Although moot, assuming the Receiver did have authority to file the Complaint, as to the Receiver’s claim for damages the Receiver has clarified that it does not seek its own fees, expenses, and costs. Instead, it seeks recovery of receivership assets. To the extent the Receiver’s claim for damages is limited to recovery of assets of the receivership estate, such damages appear to fall squarely within the bounds of the Order Appointing Receiver. As such, the Receiver would need to amend the Complaint to clarify that its request for damages is limited to recovering assets of the receivership estate.
Revere is Not Liable to the Receiver for Fees and Costs and Thus Cannot Seek to Recover Such Fees and Costs as Damages
The Debtor argues that Revere has no basis to include fees and expenses of the Receiver. In response, Revere has cited to authorities indicating that in the event that the receivership estate is insufficient to pay the Receiver’s fees and expenses, courts have, in some cases, found third parties liable to the receivers for the deficiency. The Debtor asserts that Atl. Tr. Co. v. Chapman, 208 U.S. 360, 374, 28 S. Ct. 406, 410, 52
L. Ed. 528 (1908), is dispositive of this issue.
2:00 PM
The Supreme Court, in Atlantic Trust, acknowledged that third parties may be
held liable in certain circumstances but indicated that such cases were rare. The Supreme Court stated, in pertinent part:
It is true that cases are cited in which the party bringing a suit in which a receiver is appointed has been held liable for expenses incurred by the receiver in excess of the proceeds arising from the sale of the property. But in most, if not in all, of those cases, the circumstances were peculiar and were such as to make it right and equitable, in the opinion of the court, that that should be done.
Id. As the Debtor acknowledges, the Supreme Court did not hold that a third party could under no circumstances be liable for a receiver’s fees and expenses. Instead, the Debtor asserts only that the specific cases cited by Revere in which a third party was held liable are not applicable to the facts alleged in the instant case. Here, the Debtor does not address the broad language of the Commercial Security Agreement (Complaint at Ex. 3 at 42) in which Revere has pointed to provisions of Debtor’s loan documentation, which may provide Revere with a basis to recover for fees and expenses owed to the Receiver for his services. However, notwithstanding this point, the Complaint does not include allegations that the receivership estate will not have funds to fully compensate the Receiver such that Revere could claim any liability for his costs and fees. Nor does the Complaint set forth a claim based on the contractual language cited by Revere in its opposition. As such, the Court finds that the Complaint does not contain sufficient factual allegations to support a plausible claim for damages based on the Receiver’s fees and costs.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the Motion as to dismissal of the Receiver, and as to striking Revere’s claim for damages to the extent it includes fees and costs owed to the Receiver.
The Motion is DENIED as to it request for dismissal without leave to amend. There has been no showing by Debtor to justify dismissal with prejudice. The Receiver and Revere shall have 60 days from the date of entry of the order on the Motion to amend the Complaint.
2:00 PM
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Movant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
3:00 PM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
From: 11/29/17 EH
Docket 38
- NONE LISTED -
Debtor(s):
Luevina Henry Represented By Nancy Korompis
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Movant(s):
Luevina Henry Pro Se
Plaintiff(s):
Luevina Henry Pro Se
3:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 13
01/04/2018
Summary of the Motion:
Standard:
Upon motion of a party in interest, the bankruptcy court may determine the value of a secured claim. Fed. R. Bankr. P. 3012. Pursuant to § 506(a), an allowed claim may be bifurcated into its secured and unsecured components according to the value of the collateral. 11 U.S.C. § 506; Shook v. CBIC (In re Shook), 278 B.R. 815, 822 (9th Cir. BAP 2002).
analysis
Debtors assert that the fair market value of the Property is $9,851 based on an internet appraisal obtained from Kelly Blue Book. Creditor, though properly served, has not provided either evidence to controvert or objections to the evidence of the Debtors. As such, the Court finds that Claim No. 1 shall be bifurcated. The Court has derived the amount of the secured and unsecured portions from the figures provided in the proof of claim of Mechanics Bank (Claim No. 1) which asserts a secured claim for
$16,365.91. The Motion, in contrast, asserts that the claim amount is $16,322 (without explanation). As the Debtors have provided no evidence or objection to controvert the amount claimed in Claim No. 1, the Court will bifurcate Claim No. 1 into a secured claim in the amount of $9,851 and an unsecured claim in the amount of $6,514.91.
12:30 PM
Additionally, LBR 9013-1(h) provides that failure to timely respond to a motion may be deemed consent to the granting of the motion. Thus, as an alternative basis for granting the Motion, the Court deems Creditor’s failure to file opposition as consent.
Tentative:
The Court is inclined to GRANT the Motion.
APPEARANCE WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Frank Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Susan Garcia Represented By
Paul Y Lee
Movant(s):
Frank Garcia Represented By
Paul Y Lee
Susan Garcia Represented By
Paul Y Lee Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 40
- NONE LISTED -
Debtor(s):
Jules Andre Nelson Represented By Emilia N McAfee
Movant(s):
Jules Andre Nelson Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Edgar Raymond Domingue Sr. Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 20
- NONE LISTED -
Debtor(s):
Arnel L Ganzon Pro Se
Movant(s):
Arnel L Ganzon Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Marie Silva Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Victor Manuel Buelna Represented By David Lozano
Joint Debtor(s):
Adriana Alvizo Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 15
01/04/2018
Summary of the Motion:
TENTATIVE
Based on the Debtor’s evidence of the value of the Property, of the priority of the liens encumbering the Property, and proof that the Motion was properly served, which supports the Debtor’s request to avoid the junior lien on the Property, the Court is inclined to GRANT upon receipt of a chapter 13 discharge.
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued to the next Chapter 13 calendar.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER WITHIN 7 DAYS, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Larry Gene Hannah Represented By
12:30 PM
Todd L Turoci
Joint Debtor(s):
Susan Harris Hannah Represented By Todd L Turoci
Movant(s):
Larry Gene Hannah Represented By Todd L Turoci
Susan Harris Hannah Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #8 EH
Docket 0
- NONE LISTED -
Debtor(s):
Larry Gene Hannah Represented By Todd L Turoci
Joint Debtor(s):
Susan Harris Hannah Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Maria Isabel Alvarado Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Erik Emanuel Manlove Represented By Yoon O Ham
Trustee(s):
Karl T Anderson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Alejandro Salinas Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Lourdes Watters Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Edward James Singelyn Represented By Bruce Babcock
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Rafael Alvarado Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Chiu Ng Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Frank J Cordova Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #20 EH
Docket 14
01/04/2018
Summary of the Motion:
TENTATIVE
Creditor by its opposition requests a continuance of at least 30 days to obtain a verified appraisal of the Property.
Debtor argues that because the Motion must be filed and heard prior to confirmation of the chapter 13 plan, a continuance of the Motion cannot be granted. However, the Debtor presumes that the plan will be confirmed on January 4, 2018. It is common practice to permit secured creditors an opportunity to obtain an appraisal prior to ruling on a motion to avoid junior lien. Debtor provides no authority for the proposition that such a continuance would be unjustified in circumstances such as these nor has the Debtor articulated any legal prejudice that would result from the continuance.
In sum, the Court finds no merit in the Debtor’s reply. A continuance of the Motion
12:30 PM
for the appraisal is warranted.
APPEARANCES REQUIRED.
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Movant(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #19 EH
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Danny Josefy Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Evonne Marie Woodard Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Graciela Salcedo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Marcus Edward Kanavalov Sr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Lenton T. Hutton Represented By Brian Nomi
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eduardo Galvan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Oscar Alvarez Represented By Daniel B Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Barbara Rammell Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Theresa Susanne Ysiano Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
William Edward Walker Represented By Jenny L Doling
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Francisco R Tamayo Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Charles R Campbell II Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Joint Debtor(s):
Ruth Urie-Campbell Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 86
- NONE LISTED -
Debtor(s):
William Raymond Black Jr. Represented By
Rabin J Pournazarian
Joint Debtor(s):
Sanci Jo Black Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 180
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Movant(s):
Rod (MH) Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 86
- NONE LISTED -
Debtor(s):
Bonnie Jean Conant Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 105
- NONE LISTED -
Debtor(s):
Adrienne J Garcelli Represented By Andy C Warshaw
Joint Debtor(s):
Paul Garcelli Represented By
Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 52
- NONE LISTED -
Debtor(s):
Ashley Nicole Ortiz Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 23
- NONE LISTED -
Debtor(s):
Louise Laster Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA
From: 11/28/17 EH
Docket 79
11/28/2017
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT authority to offer loan workout options, and request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jose Luis Navarro Represented By Todd L Turoci
Joint Debtor(s):
Alma Gloria Navarro Represented By Todd L Turoci
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Erin M McCartney
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
10:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
EH
Docket 108
Service is Proper Opposition: Limited
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(4) based on an unauthorized transfer of interest in the property on the petition date.
Based on the evidence presented in the response, the Court does not, however, make a finding that Debtor was involved in a scheme to hinder, delay or defraud creditors.
GRANT waiver of Rule 4001(a)(3) stay. DENY relief from § 1301(a) stay because it appears that the co-debtor stay is inapplicable. To the extent the co-debtor stay is applicable, no co-debtor has been served with the instant motion. GRANT requests under ¶¶ 2, 3, and 10. DENY requests under ¶¶ 8 and 11 for lack of cause shown.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jeffrey K Oliver Represented By Michael Smith Sundee M Teeple
10:00 AM
Joint Debtor(s):
Holly R Oliver Represented By Michael Smith Sundee M Teeple
Movant(s):
JPMorgan Chase Bank, National Represented By
Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 10/31/17, 11/28/17 EH
Docket 82
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Nicholas M. Morales Represented By George J Paukert
Joint Debtor(s):
Bertha A. Galvan Represented By
10:00 AM
Movant(s):
George J Paukert
WELLS FARGO BANK, N.A. Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 56
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alberto H. Garcia Represented By Carey C Pickford
Joint Debtor(s):
Gina Caceres Represented By
Carey C Pickford
Movant(s):
Wilmington Savings Fund Society, Represented By
Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 89
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Keith Labell Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF THE WEST
EH
Docket 82
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 53
Service is Proper Opposition: Yes
Movant to confirm that arrears have been cured. APPEARANCES REQUIRED.
Debtor(s):
Sherry Ann Beardsley Represented By Jeffrey D Larkin
Movant(s):
Wells Fargo Bank, N.A. Represented By Mark D Estle Bruce E Brown
Beverly Lorraine Evans Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST
EH
Docket 43
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. DENY relief from the § 1301(a) stay because the motion was not served on any co-debtor. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Beatriz Esqueda Represented By Rebecca Tomilowitz
Movant(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein Jennifer C Wong
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 12/19/17 EH
Docket 30
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). DENY request for relief from the automatic under § 362(d)(2) because the Court does not have evidence that the vehicle is not necessary for an effective reorganization. DENY relief from § 1301(a) stay for failure to serve co-debtor.
GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rizal Ligayo Represented By
Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BROKER SOLUTIONS, INC
EH
Docket 25
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Julio Cesar Cacho Represented By
M Wayne Tucker
Joint Debtor(s):
Rosalie Ann Cacho Represented By
M Wayne Tucker
Movant(s):
Broker Solutions, Inc. dba New Represented By
10:00 AM
Trustee(s):
Erin M McCartney
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 31
Service is Proper Opposition: Limited
Parties to provide status of adequate protection discussions, and Debtors to explain why evidence that they are current was not attached to motion.
APPEARANCES REQUIRED.
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Movant(s):
WELLS FARGO BANK, N.A. Represented By Brandye N Foreman
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
From: 11/28/17 EH
Docket 33
11/28/2017
Service: Proper Opposition: Yes
Parties to indicate whether arrears have been cured or alternatively, whether APO agreement has been reached.
APPEARANCES REQUIRED.
Debtor(s):
Gregory Dwight Vit Represented By Christopher J Langley
Movant(s):
Bank Of New York Mellon FKA Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JP MORGAN CHASE BANK NA
EH
Docket 36
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
John P Morris Represented By
Michael Smith Sundee M Teeple
Joint Debtor(s):
Cassandra M Morris Represented By Michael Smith Sundee M Teeple
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Jamie D Hanawalt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 24
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from the § 1301(a) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LOUIS J SILVESTRI AND LINDA SILVESTRI, TRUSTEE OF THE LOUIS J SILVESTRI AND LINDA SILVESTRI FAMILY TRUST EST. 2/5/81
From: 9/12/17, 10/31/17 EH
Docket 23
09/12/2017
Service: Proper Opposition: Yes
Movant has established cause to GRANT relief from the stay under § 362(d)(1) based on the Debtor’s failure to make postpetition payments and GRANT waiver of 4001(a)
stay the request for termination of the co-debtor stay. Parties to discuss adequate protection and timing and likelihood of sale.
APPEARANCES REQUIRED.
Debtor(s):
Roger James Gardner Represented By Jenny L Doling Summer M Shaw
Movant(s):
Louis J Silvestri and Linda Silvestri, Represented By
Julian K Bach
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: QUICKEN LOANS INC
EH
Docket 24
- NONE LISTED -
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
Movant(s):
Quicken Loans Inc. Represented By Bonni S Mantovani
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 11/14/17, 11/28/17 EH
Docket 49
Service is Proper Opposition: Yes
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Alfredo Loera Represented By Paul Y Lee
Joint Debtor(s):
Veronica O Loera Represented By
10:00 AM
Movant(s):
Paul Y Lee
Freedom Mortgage Corporation Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALLY FINANCIAL
EH
Docket 18
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: KINECTA FEDERAL CREDIT UNION
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1) and (2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Esperanza O Hernandez Represented By Ronald L Brownson
Movant(s):
Kinecta Federal Credit Union Represented By Mark S Blackman
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: PROF-2013-S3 LEGAL TITLE TRUST II, BY US BANK NATIONAL ASSOC, AS LEGAL TITLE TRUSTEE
EH
Docket 14
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1) and (2). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 9. DENY requests under ¶¶ 7 and 10 for lack of cause shown.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Carmen Lopez Represented By Roberto Gil
Movant(s):
PROF-2013-S3 LEGAL TITLE Represented By Nichole Glowin
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). DENY request under § 362(d)(2) for lack of cause shown. GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rodolfo Zendejas Represented By Robert R Tilton
Movant(s):
U.S. Bank National Association, as Represented By
Kelly M Raftery
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: PROF-2013-S3 LEGAL TITLE TRUST IV
EH
Docket 14
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jose Lewis Bobadilla Jr. Represented By Gary S Saunders
Movant(s):
PROF-2013-S3 Legal Title Trust IV Represented By
Darlene C Vigil
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(2). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Horace Louis Willliams Represented By Joel M Feinstein
Joint Debtor(s):
Arda Minette Willliams Represented By Joel M Feinstein
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 14
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1) and (2). GRANT request for relief under § 362(d)(4) based on multiple bankruptcy filings affecting the property. GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, 10 and 12.
APPEARANCES REQUIRED.
Debtor(s):
Rosalba Orea Pro Se
Joint Debtor(s):
Constantino Orea Pro Se
Movant(s):
Bank Of America, N.A. Represented By Nancy L Lee Jennifer C Wong
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jason James Popken Represented By Terrence Fantauzzi
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: FORBIX CAPITAL CORP
CASE DISMISSED 1/4/18
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT relief from the automatic stay pursuant to § 362(d)(4) based on multiple filings affecting the property and an unauthorized transfer of an interest.
GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY requests under ¶ 4, 8 and 11 for lack of cause shown. GRANT request under ¶ 10 upon recording of a copy of this order or giving appropriate notice of its entirety in compliance with applicable nonbankruptcy law.
APPEARANCES REQUIRED.
Debtor(s):
Maria Isabel Alvarado Pro Se
Movant(s):
Forbix Capital Corp. Represented By Robert Reganyan
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Lisa Yvonne Mellado Represented By Mona V Patel
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: WINDCHIME PROPERTIES LP
CASE DISMISSED 1/4/18
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT request for relief from the automatic stay pursuant to § 362(d)
based on multiple filings affecting the property. GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 9. DENY request under ¶ 7 for lack of cause shown. DENY request for relief from § 1301(a) stay because the motion was not served on any co-debtor.
APPEARANCES REQUIRED.
Debtor(s):
Chiu Ng Pro Se
Movant(s):
WIND CHIME PROPERTIES, LP Represented By
Helen G Long
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 10
NONE LISTED -
Debtor(s):
Eduardo Galvan Pro Se
Movant(s):
U.S. BANK NATIONAL Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: GILBERT AND LISA ENRIQUEZ
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Gilbert Richard Enriquez Represented By
Raj T Wadhwani
Joint Debtor(s):
Lisa Lynn Enriquez Represented By
Raj T Wadhwani
Movant(s):
Gilbert Richard Enriquez Represented By
Raj T Wadhwani
10:00 AM
Lisa Lynn Enriquez Represented By
Raj T Wadhwani Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HONG YU FU
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Atina Castro Pro Se
Movant(s):
Hong Yu Fu Represented By
Helen G Long
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
(2) Requiring Status Report EH
Docket 7
NONE LISTED -
Debtor(s):
Ohlone Tribe of Carmel First Represented By Odeha L Warren
2:00 PM
Also #33 EH
Docket 5
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Requiring Status Report Also #32
EH
Docket 48
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
10:00 AM
EH
Docket 13
NONE LISTED -
Debtor(s):
James Alexander Gago Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Karla Erika Garcia Salcido Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Shamicka N Jackson Represented By Daniel King
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 7
NONE LISTED -
Debtor(s):
Francisco Jose Vasquez Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 17
NONE LISTED -
Debtor(s):
Deborah Voorhis Harmon Represented By Douglas A Plazak
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Carol Olvera Rosales Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 55
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee, and Special Counsel have been set for hearing on the notice required by LBR 2016-1.
Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: | $3,695.78 |
Trustee Expenses: | $19.81 |
Special Counsel Fees: | $11,193.96 |
Special Counsel Costs: | $3,743.20 |
Trustee GC Fees: | $5,849.36 |
Trustee GC Costs: | $1,217.78 |
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
11:00 AM
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee, have been set for hearing on the notice required by LBR 2016-1.
The only receipts in this case were generated through a settlement approved by the Court on June 13, 2017 [Dkt No. 49; settlement motion, Dkt. No. 46] Paragraph 11 of the settlement motion’s statement of facts states the following:
The application also provided that payment of the Fees and Expenses shall be subject to the terms of the application and the approval of the Bankruptcy Court after the filing of either a combined motion for Bankruptcy Court approval of the settlement and the payments of the Fees and Expenses or a separate fee application in accordance with 11 U.S.C. §§ 328 and 330 and Local Bankruptcy Rules.
Paragraph 12 of the settlement motion states the following:
By an order entered on April 20, 2017, the Court granted the application but modified the terms of employment by providing that the payments of the Fees and Expenses shall be subject to the approval of the Bankruptcy Court after the filing of a separate fee application in accordance with 11 U.S.C. §§ 328 and 330 and Local Bankruptcy Rules.
As acknowledged by Trustee, this Court’s order authorizing the employment of the Phillips Law Firm as special counsel explicitly required, through the Court’s modification of Trustee’s proposed order, the filing of a separate fee application if Trustee was to make any payments to the firm. Yet, such an application was not filed.
In the absence of the required fee application, the Court cannot approve the Trustee’s proposed distribution to the extent that that proposed distribution includes payments to the Phillips Law Firm. The Trustee’s final report, however, does not appear to contemplate payments to the Phillips Law Firm, but, rather, it appears that such payments have already been made in violation of this Court’s order.
11:00 AM
Given that the majority of the gross receipts in this case appear to have already been paid from the estate in violation of Court order, no further distributions can be authorized at this time.
APPEARANCES REQUIRED.
Debtor(s):
William Scott Graham Represented By Edward G Topolski
Joint Debtor(s):
Rebecca Sue Graham Represented By Edward G Topolski
Trustee(s):
Karl T Anderson (TR) Represented By Robert A Hessling
11:00 AM
Docket 61
NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Docket 138
BACKGROUND
On May 8, 2017, Malik and Zobia Asif (collectively, the "Debtors") filed for chapter 11 relief. On June 23, 2017, based on representations and the record made by creditors at a Case Management Conference related to the status of the Debtors’ Baja Fresh franchises, the Court converted the case to a case under chapter 7.
On November 24, 2017, the Office of the United States Trustee ("UST") filed a Motion for Extension of Time to File a Complaint Objecting to Discharge ("Motion"). In support of the Motion, the UST asserts that based on the Debtors’ request for additional time to produce the documents necessary to the UST’s evaluation of whether grounds exist to seek denial of discharge, a 60-day extension of the discharge and dismissal deadline is warranted.
Service of the Motion was proper and no opposition has been filed.
DISCUSSION
Pursuant to Federal Rule of Bankruptcy Procedure ("FRBP") 4004 and 1017, Trustee seeks to extend the deadline for Trustee and U.S. Trustee to file a complaint objecting to Debtor’s discharge under 11 U.S.C. § 727 and the deadline to seek dismissal under § 707 , for an additional 60 days to January 25, 2018.
Under FRBP 4004(a) and 1017(e), on a motion of any party in interest, the court may for cause extend the time to object to discharge or to seek dismissal. Fed. R. Bankr. P. 4004, 1017.
As a matter of practice what constitutes "cause" rests within the discretion of
11:00 AM
the bankruptcy court. See In re James, 187 B.R. 395, 397 (Bankr. N.D. Ga. 1995). Also, Courts are generally unified in the view that the term "for cause" should receive a liberal construction. Id. Notwithstanding that fact, however, a creditor must exhibit some minimum degree of due diligence prior to seeking such an extension, and the Court should not allow the motion to serve as license for a baseless "fishing expedition." Id; See also In re Leary, 185 B.R. 405, 406 (Bankr. D. Mass. 1995). To establish cause movant must (1) show that he had, with reasonable diligence, attempted to investigate the facts and circumstances, and (2) offer a reasonable explanation of why that investigation could not be completed within the allotted time. See Bomarito, 448 B.R. at 251.
The UST has presented evidence that they sought financial records of the Debtors and their entities on November 8, 2017. The UST asserts that they are informed and believe that the Debtors require additional time to produce the documents. The UST has further indicated that after meeting and conferring with Debtors’ counsel, the Debtors indicated that they were agreeable to the extension.
TENTATIVE RULING
Accordingly, based on the record provided by the UST and the failure of the Debtors to file opposition, the Court is inclined to GRANT the relief requested and provide the UST an extension for the filing of a complaint under § 727, and/or for the filing of a motion to dismiss under § 707, to January 25, 2018.
APPEARANCES WAIVED. Movant to file an order within 7 days.
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Movant(s):
United States Trustee (RS) Represented By Everett L Green
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
11:00 AM
EH
Docket 146
NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Movant(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Best Best & Krieger Caroline Djang
11:00 AM
EH
Docket 33
01/10/2018
BACKGROUND
On December 14, 2016, Mee Soon Kim ("Debtor") filed a petition for chapter 7 relief. Larry Simons is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate are certain real property assets located at 10076 Orchard Street ("Orchard Property") and 18562 Valley Blvd in Bloomington, CA (the "Valley Property") (collectively, the "Properties").
On December 19, 2017, the Trustee filed his Motion by Chapter 7 Trustee for Order: (1) Authorizing Sale of Real Property of the Estate Free and Clear of all Liens, Interests, Claims and Encumbrances to Attach to Proceeds; (2) Expunging Lis Pendens; (3) Approving Overbid Procedures; (4) Determining that Buyer is Entitled to 11 U.S.C. § 363(m) Protection; and (5) Waiving the 14 Day Stay Under Rule 6004 (the "Motion").
Service of the Motion was proper
DISCUSSION
Sale of Estate Property Pursuant to Section 363(b)
The trustee, after notice and a hearing, may sell property of the estate. 11 U.S.C. § 363(b)(1); see also Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 352 (1985). The sale must be in the best interests of the estate and the price must be
11:00 AM
fair and reasonable. In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985);
see also In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991)(sale must have fair/reasonable price, accurate/reasonable notice to creditors and sale made in good faith). The trustee must articulate some "business justification" for selling estate property out of the "ordinary course of business" before the court may approve the transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); In re Ernst Home Ctr., Inc., 209 B.R. 974, 979 (Bankr. W.D. Wash. 1997). Objections to sale that are based on inadequacy of price are often resolved the court ordering an auction, which may occur in open court. Simantrob v. Claims Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 287 (9th Cir. BAP 2005) citing Fed. R. Bankr. P. 6004(f).1
In support of the proposed sale to Chai Choi ("Buyer"), the Trustee sets forth the following figures and analysis:
Sale Price … | $655,000 |
Tax encumbrances (estimated) … | $46,268.52 |
Unpaid postpetition property insurance fees … | $2,033.30 |
Estimated Broker’s commission … $39,300
Based on these figures, the Trustee’s estimate of net proceeds after cost of sale in excess of $550,000 appears reasonable. Thus, the Trustee’s business justification for the sale warrants granting of the Motion.
Generally, bidding procedures must be untainted by self-dealing, encourage bidding and be fair/reasonable/serve the best interests of the estate. See In re Crown
11:00 AM
Corp., 679 F.2d 774 (9th Cir. 1982). The Trustee’s proposed bidding procedures are reasonable and encourage bidding. Thus, the Trustee’s procedures, as amended to provide for overbids in increments of $1,000, are approved.
The proposed sale has been brought in good faith and has been negotiated on an "arms- length" basis. The court, in Wilde Horse Enterprises, set forth the factors in considering whether a transaction is in good faith. The court stated:
‘Good faith’ encompasses fair value, and further speaks to the integrity of the transaction. Typical ‘bad faith’ or misconduct, would include collusion between the seller and buyer, or any attempt to take unfair advantage of other potential purchasers. And, with respect to making such determinations, the
court and creditors must be provided with sufficient information to allow them to take a position on the proposed sale.
Id. at 842 (citations omitted).
Here, the Trustee marketed the Properties via his Broker, Simans and Neiman, which marketed on the MLS, the Southland Regional Association of Realtors MLS, Redfin.com, Zillow.com, and Trulia.com. The Broker received 4 offers for the Properties and the Buyer’s offer was the best and highest offer (and was $55,000 over the purchase price). The sale appears to be made in good faith.
A trustee may sell estate property "free and clear" of third party interests in the property, such as co-ownership interest, liens, claims and encumbrances. See 11
U.S.C. § 363(f). A sale free and clear of third party interests pursuant to section 363 is authorized only if one of the following conditions is met: (1) sale authorized by applicable nonbankruptcy law; (2) third party whose interest will be affected consents;
the affected interest is a lien and the sale price is greater than total value of all
11:00 AM
liens on the property; (4) the affected interest is a bona fide dispute; or (5) the third party whose interest will be affected could be compelled to accept a money satisfaction of the interest. 11 U.S.C. § 363(f)(1)-(5).
The Trustee proposes to sell the Property free and clear of the interest of Jabro who obtained a lis pendens prepetition based on state court litigation against the Debtor. The Trustee asserts that the state court litigation has now been dismissed and thus requests that this Court expunge the lis pendens, or alternatively, that the Court authorize the sale free and clear of the Jabro Lis Pendens. The Court is not persuaded that the Notice of Motion and Motion sufficiently provided notice to Jabro of the possibility that his Lis Pendens could be expunged if he failed to file opposition to the Motion. Thus, by reason of due process, the Court is disinclined to expunge the Jabro Lis Pendens, notwithstanding the dismissal of the underlying state court litigation.
However, the Court finds that the Trustee has provided sufficient evidence to sell free and clear of the Jabro Lis Pendens under § 363(f)(4) because the evidence indicates that should Mr. Jabro attempt to assert a secured claim against the Properties, such claim would be the subject of a bona fide dispute based on the dismissal of his state court action. On this basis, the Court is inclined to grant the sale of the Properties free and clear of the Jabro Lis Pendens, with the Jabro Lis Pendens to attach to the proceeds to the same extent, validity and priority.
d) Purchaser in "Good Faith" Pursuant to Section 363(m)
Section 363(m) provides that "[t]he reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith…." 11 U.S.C. § 363(m).
The Trustee has indicated in his declaration that the Buyer had a pre-existing agreement with Tae Kim (the prepetition transferee whose interests in the Properties have been avoided by the Trustee). However, the Trustee has also indicated that the he had no relationship to the Buyer and that the Trustee did not propose a sale to the
11:00 AM
Buyer at the same price and instead had the Properties marketed at a higher price which the Buyer was willing to meet. However, the Court requires a declaration of the Buyer to qualify for § 363(m) protection.
TENTATIVE RULING
For the foregoing reasons, the Court is inclined to GRANT the Motion as follows:
Authorizing the sale of the Property under § 363(b) to the Buyer or to a successful overbidder at the hearing in accordance with the terms of the Purchase Agreement;
Approving the sale free and clear of all liens, claims, interests, and encumbrances and authorizing the Trustee to pay tax liens, costs of sale and other expenses directly from the sale proceeds, including escrow fees, real estate commissions, and TRG insurance fees as set forth in the Motion;
Providing that the Trustee is authorized to execute and deliver any documents necessary to effectuate the proposed sale;
Authorizing the sale on an AS-IS, WHERE-IS basis, without warranties or representations;
Finding that notice was proper and sufficient;
Approving the overbid procedures; and
Waiving the fourteen day stay under FRBP 6004(h).
Finally, the Court shall also provisionally GRANT the request for a § 363(m) finding on the condition that a declaration of the Buyer be submitted prior to lodgment of the order on the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Mee Soon Kim Represented By Minh Duy Nguyen
11:00 AM
Movant(s):
Larry D Simons (TR) Represented By David Seror Michael W Davis
Trustee(s):
Larry D Simons (TR) Represented By David Seror Michael W Davis
2:00 PM
Adv#: 6:15-01370 Speier v. Test-Rite Products Corp. et al
§ 3439.04(a)(1) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (2) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(A) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (3) Fraudulent Transfer Pursuant to 11 U.S.C. § 544(b) and Cal. Civ. Code §§ 3439.04(a)(2), 3439.05 and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (4) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(B) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (5) Conversion; (6) Unlawful Payment of Dividends; (7) Breach of Fiduciary Duty by Officer; (8) Breach of Fiduciary Duty by Controlling Shareholder; and (9) Declaratory Relief as to Alter Ego Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 3/2/16, 4/6/16, 4/27/16, 6/29/16, 7/20/16, 8/3/16, 9/28/16, 11/9/16, 3/29/17, 8/2/17, 11/8/17
EH
Docket 1
NONE LISTED -
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Defendant(s):
Test-Rite Products Corp. Represented By
2:00 PM
Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite International (U.S) Co. Represented By
Julie A Garcia John Y Kim Aaron S Craig
Test-Rite International Co. Ltd. Represented By Julie A Garcia Aaron S Craig Joon M Khang John Y Kim Brian Wheeler
Chester Lee Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Christina Ma Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Test-Rite International (US) Co. Ltd. Represented By
Joon M Khang Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite Products Corp. Represented By Joon M Khang Julie A Garcia
2:00 PM
John Y Kim Aaron S Craig
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Marc C Forsythe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
2:00 PM
Adv#: 6:17-01121 Smedman et al v. STATE BOARD OF EQUALIZATION et al
From: 8/30/17, 9/27/17 EH
Docket 1
NONE LISTED -
Debtor(s):
Garrick Craig Smedman Represented By Neil C Evans
Defendant(s):
STATE BOARD OF Pro Se
California Department of Tax and Represented By
Matthew C. Heyn
Joint Debtor(s):
Veronica Lee Wilkins Represented By Neil C Evans
Plaintiff(s):
Craig Smedman Represented By Neil C Evans
Veronica Lee Wilkins Pro Se
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
CONT: 11/15/17, 12/6/17
Docket 1
NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Plaintiff(s):
Itria Ventures, LLC Represented By Michael F Chekian
Trustee(s):
Arturo Cisneros (TR) Represented By
2:00 PM
Thomas H Casey
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
Also #16 EH
Docket 19
01/10/2018
TENTATIVE RULING
At the hearing on the Plaintiff’s prior Motion for Default Judgment, the Court’s tentative ruling provided, in pertinent part, as follows:
Plaintiff seeks default judgment be entered against Defendant Richard Earl Davis, Jr. (the "Debtor"). Service of the Motion AND of the Summons and Complaint were all effectuated on the Debtor at "2280 Market Street #220 in Riverside, CA". However, the Debtor’s bankruptcy petition indicates his place of residence as "9325 Sunridge Drive in Riverside, CA 92508".
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy
2:00 PM
petition. Deadlines shall be reset accordingly.
An alias summons was issued and the Plaintiff filed a proof of service indicating that the Alias Summons was executed. The instant Motion for Default Judgment was then filed on December 7, 2017. Both Proofs of Service indicate that the Debtor was now served at "9324 Sunridge Drive in Riverside, CA" Again, in a situation where the Debtor/Defendant is nonresponsive, the Plaintiff’s ongoing failure to serve the Debtor at the correct address creates a due process issue which prevents this case from moving forward.
Separately, although the Debtor has disclosed the debt owed to Plaintiff in the amount of $150,000 in his Schedule E/F pursuant to a State Court Judgment, the Court notes that the Plaintiff has failed to attach the underlying state court documents (e.g. the state court complaint and judgment) which are essential to final ruling on the Complaint. Additionally, the Plaintiff has not included points and authorities to indicate whether the motion is made under collateral estoppel principles.
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy petition. Deadlines shall be reset accordingly.
Ongoing failure to correctly serve documents on the Debtor correctly may result in sanctions.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Movant(s):
Angelo M Gumbs Represented By Alexander B Boris
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris
Kandis Gumbs Represented By Alexander B Boris
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
From: 8/30/17, 11/1/17 Also #15
EH
Docket 1
NONE LISTED -
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris
Kandis Gumbs Represented By Alexander B Boris
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
EH
Docket 33
NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 9/7/16, 11/9/16, 1/11/17, 3/8/17, 4/12/17, 5/17/17, 6/7/17, 7/26/17, 9/27/17, 11/29/17
Also #17 EH
Docket 1
NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbbash et al
EH
Docket 28
BACKGROUND
On April 11, 2017, Issa & Amal Musharbash ("Debtors") filed a Chapter 7 voluntary petition. On July 17, 2017, Phillip & Violette Musharbash ("Plaintiffs") filed a non- dischargeability complaint against Debtors. On August 16, 2017, Debtors filed an answer. On September 20, 2017, an initial status conference was held.
On September 29, 2017, Plaintiffs filed a motion for leave to file an amended complaint (the "Amendment Motion"). The Court granted the Amendment Motion and provided the Plaintiffs with a deadline of November 2, 2017, to file their amended complaint. The Plaintiffs in their declaration indicate that they inadvertently believed they had already filed the amended complaint alongside their Amendment Motion.
DISCUSSION
Fed. R. Civ. P. Rule 15(a)(1)-(2) states:
A party may amend its pleading once as a matter of course within:
2:00 PM
21 days after serving it, or
if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f) whichever is earlier
In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
Here, Debtors’ answer was filed on August 12, 2017, and, therefore, the standard of Fed. R. Civ. P. Rule 15(a)(2) applies.
As is noted by Plaintiffs, "leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992).
Here, the Court previously determined that the Plaintiffs’ request for amendment was justified. However, Plaintiffs failed to file their amended complaint by the Court ordered deadline of November 2, 2017. Now Plaintiff’s request this Court’s authority to permit their late filing of the amended complaint. Defendants, though properly served, have failed to file opposition and the Court does not perceive legal prejudice from permitting the late amendment, which amended complaint shall be filed by January 26, 2018. For these reasons, the Court is inclined to GRANT the request to permit the late-filing of the amended complaint with the condition that should Defendants appear at the hearing on 1/10/2018, they shall be reimbursed for costs of travel and lost wages, if any, for attendance at the hearings set for 1/10/2018.
TENTATIVE RULING
The Court is inclined to GRANT the motion as set forth herein.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbbash Pro Se
Amal Musharbbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Movant(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
12:30 PM
EH
Docket 109
1/11/18
Background:
On April 3, 2012, Linda Majors ("Debtor") filed a Chapter 13 voluntary petition. On July 2, 2012, Debtor’s Chapter 13 plan was confirmed. On October 12, 2017, Debtor received a discharge.
On July 6, 2012, Chase Records Center filed a proof of claim for a debt in the amount of $93,323.90, secured by Debtor’s principal residence ("Claim 3"). Claim 3 included
$13,601.58 in pre-petition arrears. Claim 3 has been transferred four times since the claim was filed, and is currently held by New Penn Financial, LLC ("Creditor’).
On November 30, 2017, Trustee filed an objection to Claim 3. Trustee requests that Claim 3 be decreased by $13,485.26, and that Creditor return $8,149.13 to the estate.
The factual background for Trustee’s request is the following. On November 2, 2015,
12:30 PM
Residential Credit Solutions, Inc. ("Residential"), the holder of Claim 3 at the time, filed a motion for court consent to enter into a loan modification agreement. On November 10, 2015, Trustee filed comments indicating conditional approval of the request. Among the conditions enumerated by Trustee was that Residential would amend Claim 3 within thirty days of a final loan modification. On December 21, 2015, Debtor, who was not the movant, filed a declaration of non-opposition for the motion for court consent to enter into a loan modification agreement. No order, however, was obtained.
Nevertheless, pursuant to Trustee’s claim objection, it appears that the parties acted as if they had a properly consummated loan modification. Specifically, Trustee asserts that on October 12, 2017, Creditor acknowledged the loan modification and inquired whether any funds needed to be returned. Trustee appears to assert that the loan modification would have eliminated all but $116.32 (the pre-petition late charges) of the pre-petition arrears. Trustee states that the effective date of the loan modification was September 1, 2015, and that after that date payments continued to Creditor on the basis of Claim 3, which was never amended. Trustee asserts that overpayments in the amount of $8,149.13 resulted.
Applicable Law:
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving
12:30 PM
rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
Analysis:
Extensive case law supports the proposition that court authorization of a loan modification agreement is not a prerequisite to the agreement’s enforceability, but, instead, such authorization simply provides additionally certainty and clarity to the contracting parties. See, e.g., In re Wofford, 449 B.R. 362, 364 (Bankr. W.D. Wis. 2011) ("At the same time, there does not appear to be any applicable law or rule that requires judicial approval of the terms of the loan modification itself."); see also Stewart v. Bank of Am., N.A., 201 WL 7475613 (N.D. Cal. 2016); Matter of Moore, 2015 WL 5553534 (Bankr. S.D. Ga. 2015); In re Smith, 409 B.R. 1 (Bankr. D.N.H.
2009). Here, therefore, the loan modification is not invalid solely on the basis that the parties did not obtain a court order approving the agreement. Trustee has provided adequate evidence that an enforceable loan modification agreement was entered into by Debtor and Creditor.
12:30 PM
Additionally, Trustee has provided adequate evidence that the loan modification resulted in a reduction of the pre-petition arrears from $13,601.58 to $116.32.
Trustee’s additional request, however, raises procedural concerns. As is acknowledged by Trustee in his e-mail correspondence with Debtor’s attorney in Exhibit J, Trustee’s request for turnover of funds by a non-debtor party typically requires an adversary proceeding pursuant to Fed. R. Bankr. P. Rule 7001(1). While the requirement of an adversary proceeding may be waived in certain circumstances, those circumstances are not present here. Specifically, Creditor is a large, national company and has not filed any opposition to the instant motion. Under these circumstances, the Court cannot deem the Creditor to have waived the due process protections it is entitled to under Rule 7001.
Tentative Ruling
The Court is inclined to SUSTAIN the objection to the extent it seeks a reduction of the pre-petition arrears of Claim 3 in the amount of $13,601.58. The Court is inclined to OVERRULE the objection to the extent it seeks relief which falls under the protections of Fed. R. Bankr. P. Rule 7001(1).
APPEARANCES REQUIRED.
Debtor(s):
Linda Gail Majors Represented By Anthony Wilaras
Movant(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:30 PM
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:30 PM
Also #3 EH
Docket 123
On May 8, 2012, John and Nancy Elbers (collectively, "Debtors") filed their petition for chapter 13 relief. Amrane Cohen is the duly appointed chapter 13 trustee ("Trustee"). At the inception of the case, the Debtors were represented by Samuel Kelsall ("Kelsall"). On behalf of the Debtors, Kelsall filed the petition and took various actions in the case on behalf of the Debtors, including prosecution of a motion to avoid lien through an evidentiary hearing. The Trustee’s records indicate that Kelsall incurred and received $12,000 in total for his bankruptcy services on behalf of the Debtors.
On November 14, 2017, the Debtors filed a Motion For Sanctions/Disgorgement of Attorneys' Fees re Samuel Kelsall (the "Motion"). The Motion asserts that:
Kelsall received $1,460 from Hyatt Legal Plans ("Hyatt") on behalf of the Debtors, and that check is dated August 17, 2012 (the "Hyatt Payment");
Kelsall received an additional $40 from Hyatt which Kelsall asserts was for a consultation;
Kelsall filed a Disclosure of Compensation of Attorney for Debtor on May 8, 2012;
12:30 PM
Kelsall did not file a supplement to his disclosed compensation at any time during the pendency of the case; and
At a hearing on August 17, 2012, on a Trustee’s Motion to Dismiss, the Debtors represented to the Trustee that Kelsall had received an additional
$1,500 from Hyatt which Kelsall had failed to disclose.
Based on the alleged nondisclosure by Kelsall of the Hyatt Payment, the
Trustee seeks an order requiring him to disgorge $13,500 (or the total amount paid by the Debtors for the bankruptcy-related services). The requested disgorgement is sought under FRBP 2016(b) which requires disclosure of compensation and supplemental statements regarding amounts paid but not previously disclosed.
On December 5, 2017, Kelsall filed opposition to the Motion ("Opposition"). As regards the merits of the Motion, Kelsall asserts that the Trustee’s evidence of the Hyatt Payment is deficient in that the records produced by Hyatt are not accompanied by a record or other documentation indicating which case the payment was made on (i.e. does not identify the Debtors or their case). Kelsall further argues that the numbers do not add up. In support, he asserts that the fee for a couples’ bankruptcy filing would be a total of $1,500, not including the additional $40 for the consultation. Thus, the check for $1,460 plus the $40 consultation fee cannot have been for payment towards the Debtors’ case because the actual amount owed by Hyatt on behalf of the Debtors would have been $1,500 plus $40.
In reply to Kelsall, the Trustee notes that Kelsall has indicated he cannot identify on whose behalf the Hyatt Payment was made. The Trustee argues that Kelsall’s response further compounds the problems identified in the Motion because it demonstrates Kelsall’s failure to properly account for funds received by his firm on behalf of his clients as required by the California Rules of Professional Conduct.
DISCUSSION
There is no legal dispute regarding the applicability of FRBP 2016. Instead, the instant matter is solely a factual dispute regarding whether or not Kelsall received the Hyatt Payment on behalf of the Debtors which would have triggered his duty to
12:30 PM
disclose compensation. Kelsall disputes that he received funds from Hyatt on behalf of the Debtors. Although Kelsall is correct that the check proffered by the Trustee does not identify the Debtors on the check, he does not provide evidence to indicate that the check was definitively received by his office on behalf of other clients.
Moreover, the evidence indicates that the check was issued in 2012. Thus, several years have lapsed in the interim and the Trustee correctly points out that during that time it was Kelsall’s duty to properly account for the Hyatt Payment. Finally, the letter from Hyatt dated April 26, 2017 provides evidence the funds were paid to Kelsall (and Kelsall has failed to object to this evidence). As such, Kelsall failed in his duty to disclose all compensation received.
TENTATIVE RULING
Based on the foregoing, the Court is inclined GRANT the Motion and order disgorgement.
APPEARANCES REQUIRED.
Debtor(s):
John Raymond Elbers Pro Se
Joint Debtor(s):
Nancy Ann Elbers Pro Se
Movant(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:30 PM
From:12/14/17 Also #2
EH
Docket 118
As a threshold matter, the Court incorporates and takes judicial notice of the pleadings filed in connection with Docket No. 123, the Trustee’s Motion for Disgorgement, and of the factual allegations made therein as they may regard the instant matter.
On September 26, 2017, the Trustee filed his Notice of Intent to File Trustee’s Final Report and Account (the "Notice"). On October 25, 2017, the Debtors filed their objection to the Notice ("Objection"). The Debtors’ objection specifically argues that
Kelsall’s fees received in the case exceeded reasonable and customary fees and should not have been awarded, (2) Debtors did not receive service by mail (purportedly of the Fee Applications) filed by Kelsall and therefore did not have an opportunity to object, and (3) that Kelsall failed to disclose the $1,500 received from Hyatt on behalf of the Debtors. Based on these allegations, the Debtors seek disgorgement.
DISCUSSION
As a threshold matter, the Debtors’ Objection is not properly before the Court because the Debtors are seeking affirmative relief from Mr. Kelsall in an objection to
12:30 PM
the Trustee’s Notice of Intent to File his Final Report. However, given that Mr. Kelsall filed a response and that the Debtors are in pro per, the Court will briefly address the arguments made.
The mailbox rule provides that the proper and timely mailing of a document raises a rebuttable presumption that the document has been received by the addressee in the usual time. It is a settled feature of the federal common law. Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Rosenthal v. Walker,
111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884); Lewis v. United States, 144 F.3d
1220, 1222 (9th Cir.1998).
Because the common law mailbox rule operates as a rebuttable presumption, the factfinder must determine whether Mr. Kelsall has presented sufficient evidence of mailing to invoke the presumption of receipt and, if so, whether the Debtors have presented sufficient evidence of non-receipt to rebut the presumption. Schikore v.
BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 963 (9th Cir. 2001).
Here, Mr. Kelsall has provided Ex. 10, the Application for Supplemental Fees, Ex. 12, the Notice of Hearing on Application for Payment of Interim or Final Fees, both with corresponding proofs of service. Both documents are signed under penalty of perjury and contain attached mailing lists which indicate that the Debtors were served at their residence. In contrast, the Debtors have provided no evidence to controvert the proofs of service. As such, the Court must find that the Debtors have failed to rebut Mr. Kelsall’s evidence of mailing and therefore that the Debtors are presumed to have received Mr. Kelsall’s applications for fees.
Next, having found that the Debtors received proper notice and service of Mr.
Kelsall’s fee applications, the Debtors cannot now object to Mr. Kelsall’s fees. The time to object to the reasonableness of fees was when they received notice of the applications. As such, the Court need not address whether Mr. Kelsall’s fees were reasonable.
12:30 PM
Finally, the Debtors have raised the issue of Mr. Kelsall’s nondisclosure of the
$1,500 in payments from Hyatt. This matter is being concurrently addressed by the Trustee’s Motion for Disgorgement. As such, there is no need to address the matter further on this Objection.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to OVERRULE the Debtor’s Objection as not properly brought before the Court, and as an alternate grounds, on the merits for the reasons stated herein.
APPEARANCES REQUIRED.
Debtor(s):
John Raymond Elbers Pro Se
Joint Debtor(s):
Nancy Ann Elbers Pro Se
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:31 PM
Docket 98
NONE LISTED -
Debtor(s):
Larry J Neilsen Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Joint Debtor(s):
Brenda J Neilsen Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
12:31 PM
From: 11/9/17 EH
Docket 56
NONE LISTED -
Debtor(s):
Mary Black-Williams Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
12:31 PM
Docket 143
NONE LISTED -
Debtor(s):
Thomas D Felch Represented By Michael F Chekian
Joint Debtor(s):
Michelle M Felch Represented By Michael F Chekian
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR) Amrane (SA) Cohen (TR)
12:31 PM
Docket 91
NONE LISTED -
Debtor(s):
Karen Patricia Boyd Represented By David Lozano
Movant(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:32 PM
EH
Docket 0
NONE LISTED -
Debtor(s):
Alejandro Salinas Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
NONE LISTED -
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 91
BACKGROUND
On November 21,2013, Jose & Hiliana Castellanos ("Debtors") filed a Chapter 7 voluntary petition. On December 17, 2013, Debtors’ case was converted to Chapter
13. On March 6, 2014, Debtors’ Chapter 13 plan was confirmed.
On July 5, 2017, Trustee filed a motion to dismiss for failure to submit tax returns to the Trustee. No opposition was filed by Debtors and, after a continuance, the motion was granted and the case was dismissed on November 13, 2017.
On November 28, 2017, Debtors filed a motion to vacate dismissal. Debtors’ primary explanation why the tax returns were not tendered is that: (1) a filing extension to October 15th; and (2) that Debtors made their final plan payment on November 3, 2017. On November 29, 2017, Trustee filed comments indicating conditional approval of the motion, assuming that the tax returns were sent to the Trustee and the motion was served properly.
DISCUSSION
12:32 PM
Fed. R. Bankr. P. Rule 9024, incorporating Fed. R. Civ. P. Rule 60(b)(1), provides for relief from an order for, among other things, "mistake, inadvertence, surprise, or excusable neglect." Debtors state that they asked their accountant to mail a copy of the tax returns to the Trustee, and that, at the time of the dismissal of their case, they had finished making plan payments.
Given the conditional approval of the Trustee and the evidence submitted by Debtor, the Court finds that the requested relief is proper assuming that the Trustee’s conditions have been satisfied..
TENTATIVE RULING
The Court is inclined to GRANT the motion conditioned on the Trustee’s confirmation that he has received the applicable tax returns.
APPEARANCES REQUIRED.
Debtor(s):
Jose Castellanos Represented By Mark E Brenner
Joint Debtor(s):
Hiliana Castellanos Represented By Mark E Brenner
Movant(s):
Jose Castellanos Represented By Mark E Brenner
12:32 PM
Mark E Brenner
Hiliana Castellanos Represented By Mark E Brenner
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 93
NONE LISTED -
Debtor(s):
Roy Kenneth Scott Represented By Sunita N Sood
Joint Debtor(s):
Tashiea Scott Represented By
Sunita N Sood
Movant(s):
California Franchise Tax Board Represented By Brian D Wesley
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
NONE LISTED -
Debtor(s):
Sheryl Welsh Represented By
Hayk Grigoryan
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 47
NONE LISTED -
Debtor(s):
Arturo Villagrana Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 66
NONE LISTED -
Debtor(s):
James Leonard Blow Jr. Represented By Jonathan D Doan
Joint Debtor(s):
Amanda Joyce Atkinson-Blow Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Also #16 EH
Docket 26
NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 40
NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 22
NONE LISTED -
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 27
NONE LISTED -
Debtor(s):
Andre J Booker Represented By Paul Y Lee
Joint Debtor(s):
Carrie L Booker Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 21
NONE LISTED -
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 36
NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 1/9/18 EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). DENY request under § 362(d)(2) for lack of cause shown. GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rodolfo Zendejas Represented By Robert R Tilton
Movant(s):
U.S. Bank National Association, as Represented By
Kelly M Raftery
1:00 PM
Trustee(s):
Arturo Cisneros (TR) Pro Se
9:30 AM
Adv#: 6:17-01046 Chapman v. U.S. Bank, NA et al
Docket 0
Debtor(s):
Bernadette Chapman Represented By Todd L Turoci
Defendant(s):
U.S. Bank, NA Represented By
Sonia Plesset Edwards Gwen H Ribar
Wenjing Dai Represented By
Robert O Marshall
Plaintiff(s):
Bernadette Chapman Represented By Todd L Turoci Julie Philippi
10:00 AM
Also #2 - #4 EH
Docket 6
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
Movant(s):
Mark Hayek Represented By
Erwin J Shustak
10:00 AM
MOVANT: CHRIS RISENMAY; JAMES BRAY; NICK CUNNINGTON; DAVID THATCHER; CLARK PENNEY; SHATTUCK LAMM; STEPHEN BIESINGER; MARK THATCHER; BRANDT KUHN; MICHELE SARNA; MARK HAYEK, AND MIKE MCCONNELL
From: 9/26/17, 10/3/17, 10/31/17, 11/28/17
Also #1 - #4 EH
Docket 27
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
Movant(s):
Mark Hayek Represented By
Erwin J Shustak
10:00 AM
From: 8/16/17, 8/23/17, 10/3/17, 10/31/17, Advanced From: 11/28/17, 11/14/17 Also #1 - #4
EH
Docket 1
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
10:00 AM
v. Integrated Wealth Management et. al. docket case no. 8:17-cv-00647-JVS MOVANT: ST JUDE HERITAGE MEDICAL GROUP
From: 11/14/17 Also #1 - #3 EH
Docket 66
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
Movant(s):
St. Jude Heritage Medical Group, Represented By
Elaine Nguyen Daniel J Weintraub James R Selth
11:00 AM
EH
Docket 135
Debtor(s):
Matthew Joseph Pautz Represented By Todd L Turoci Julie Philippi
Joint Debtor(s):
Alice Louise Pautz Represented By Todd L Turoci Julie Philippi
Trustee(s):
Karl T Anderson (TR) Represented By Leonard M Shulman Melissa Davis Lowe Samuel J Romero
12:30 PM
EH
Docket 126
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Movant(s):
Edward Edmund Zozaya Represented By Dana Travis
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
Debtor(s):
Beverley June Marshall Represented By Arthur H Lampel
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 156
Debtor(s):
Ronald Andrew Lopez Represented By David Lozano
Joint Debtor(s):
Lisa Darlene Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 180
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Movant(s):
Rod (MH) Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 39
Debtor(s):
David E. Laliberte Represented By Bernard J Gartland Timothy S Huyck
Joint Debtor(s):
Lori L. Laliberte Represented By Bernard J Gartland Timothy S Huyck
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 40
Debtor(s):
Joe Martinez Jr. Represented By David Lozano
Joint Debtor(s):
Sandra Lynette Martinez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 105
Debtor(s):
Adrienne J Garcelli Represented By Andy C Warshaw
Joint Debtor(s):
Paul Garcelli Represented By
Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 56
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 46
Debtor(s):
Luis Fernando Buenrostro Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 28
Debtor(s):
William Fuentes Represented By Marlin Branstetter
Joint Debtor(s):
Martha C Orozco de Fuentes Represented By Marlin Branstetter
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 23
Debtor(s):
Candice Maria Borrego Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
HOLDING DATE
From: 7/25/17, 8/22/17, 10/18/17, 12/4/17
Also #2 & #3 EH
Docket 88
Debtor(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
10:00 AM
From: 3/28/17, 5/30/17, 7/25/17, 8/22/17, 10/18/17, 12/4/17
Also #1 & #3 EH
Docket 6
Debtor(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
10:00 AM
From: 10/18/17, 12/4/17 Also #1 & #2
EH
Docket 80
Debtor(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
Movant(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 11/28/17 EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 11/28/17 EH
Docket 69
NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US ROF II/BANK NATIONAL ASSOC
EH
Docket 44
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. Parties to provide status of adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Catalina Smith Represented By Luis G Torres
Movant(s):
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees Alexander K Lee Jamie D Hanawalt Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER INC
EH
Docket 42
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY alternative request under § 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Mark Andrew Galliano Represented By Gregory M Shanfeld
Joint Debtor(s):
Elizabeth Ann Galliano Represented By Gregory M Shanfeld
Movant(s):
Santander Consumer USA Inc, dba Represented By
10:00 AM
Trustee(s):
Jennifer H Wang
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
From: 1/9/18 EH
Docket 53
Service is Proper Opposition: Yes
Movant to confirm that arrears have been cured. APPEARANCES REQUIRED.
Debtor(s):
Sherry Ann Beardsley Represented By Jeffrey D Larkin
Movant(s):
Wells Fargo Bank, N.A. Represented By Mark D Estle Bruce E Brown
Beverly Lorraine Evans Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
EH
Docket 50
Service is Proper Opposition: Yes
Movant to confirm that Debtors have cured arrears. APPEARANCES REQUIRED.
Debtor(s):
Michael Douglas Guerino Represented By Joseph M Hoats
Joint Debtor(s):
Xochitl Rodriguez Guerino Represented By Joseph M Hoats
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark D Estle
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HARLEY-DAVIDSON CREDIT CORPORATION
EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY alternative request under § 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles Bowen Blanton Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Heddy Maria Blanton Represented By Michael E Clark Barry E Borowitz
10:00 AM
Movant(s):
HARLEY-DAVIDSON CREDIT Represented By
Mark D Estle
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 33
NONE LISTED -
Debtor(s):
Andrew Sidney Cunningham Represented By
Bryant C MacDonald
Joint Debtor(s):
Barbara Renee Cunningham Represented By
Bryant C MacDonald
Movant(s):
Toyota Motor Credit Corporation Represented By
Erica T Loftis
Erin M McCartney Leslie M Klott Mark D Estle
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JP MORGAN CHASE BANK NA
EH
Docket 51
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY alternative request under § 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Ricky Antonio Scott Represented By Marc E Grossman
Joint Debtor(s):
Shemida Shiloni Scott Represented By Marc E Grossman
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Jamie D Hanawalt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES LLC
EH
Docket 38
Service is Proper Opposition: None
The Court is inclined to GRANT Movant’s request for confirmation that the stay is no longer in effect as to actions taken against the real property located at 2731 Duffy St., San Bernardino, CA 92407. Specifically, on July 27, 2017, the Chapter 7 Trustee filed a notice of proposed abandonment of property of the estate (and no opposition was filed) and Debtor received a discharge on May 8, 2017. Therefore, pursuant to § 362 (c), the automatic stay is no longer applicable to the abandoned real property. Because the automatic stay is no longer in effect as to the abandoned real property, the remainder of Movant’s requests are DENIED as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
David Richard Hernandez Represented By William S Tilton
Movant(s):
Carrington Mortgage Services, LLC, Represented By
10:00 AM
Trustee(s):
Alexander G Meissner
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
From: 11/28/17, 1/9/18 EH
Docket 33
11/28/2017
Service: Proper Opposition: Yes
Parties to indicate whether arrears have been cured or alternatively, whether APO agreement has been reached.
APPEARANCES REQUIRED.
Debtor(s):
Gregory Dwight Vit Represented By Christopher J Langley
Movant(s):
Bank Of New York Mellon FKA Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 38
NONE LISTED -
Debtor(s):
Luis A Jovel Represented By
Manfred Schroer
Movant(s):
Wells Fargo Bank, N.A. Represented By Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: M&T BANK AS ATTORNEY IN FACT FOR LAKEVIEW LOAN SERVICING LLC
EH
Docket 41
NONE LISTED -
Debtor(s):
William J Schaefer Represented By Patricia M Ashcraft
Joint Debtor(s):
Jennifer L. Schaefer Represented By Patricia M Ashcraft
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
From: 1/9/18 EH
Docket 24
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from the § 1301(a) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
Regular Cab SLE 4WD
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 27
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY request under § 5 because the motion has not been served on any co-debtor as that term is used in § 1301(a).
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jesus Angel Acosta Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Teresa Acosta Represented By
James Geoffrey Beirne
10:00 AM
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 37
Service is Proper Opposition: Yes
Debtor had a previous Chapter 7 filing dismissed for failure to file information on July 25, 2017. Because of the previous filing, the automatic stay in this case terminated thirty days after the petition date pursuant to § 362(c)(3)(A) absent court order. Debtor did not seek an order continuing the automatic stay and, therefore, the automatic stay terminated on August 26, 2017. Therefore, the Court is inclined to GRANT the request for relief under ¶ 3.
Movant has additionally requested annulment of the automatic stay, which would apply to the period between the petition date and the 30th day after the petition date (when the automatic stay terminated). Movant’s attachment page, captioned "Facts Justifying Annulment Continuation Page," lacks the detail necessary to justify retroactive annulment of the automatic stay. Specifically, it is unclear when Movant learned of the bankruptcy petition, and it is unclear what, if any, actions were taken in violation of the automatic stay. Moreover, the Court notes that Debtor’s creditor matrix lists multiple addresses for Movant. The docket also indicates that Movant’s counsel was served with documents evidencing the bankruptcy filing two days after the petition date, at the latest. Therefore, this request is DENIED without prejudice.
10:00 AM
Movant also requests in rem relief under ¶¶ 7 and 11. Movant’s request under ¶ 7 is denied because it is unclear if the writ of possession was obtained in violation of the automatic stay and, therefore, void. Movant’s request under ¶ 11 is denied for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Maria Armina Policarpio Trinidad Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By Alexander K Lee Sean C Ferry Kevin A Harris
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 26
NONE LISTED -
Debtor(s):
Salvador Caridad Rodriguez Represented By Carey C Pickford
Movant(s):
U.S. Bank National Association as Represented By
Nancy L Lee Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 12/5/17 EH
Docket 33
Service is Proper Opposition: Yes
Debtor to confirm she is current and parties to discuss adequate protection. APPEARANCES REQUIRED.
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: MISSION FINANCIAL SERVICES CORPORATION
EH
Docket 22
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY request for relief under § 362(d)(2) because it is unclear if the collateral is necessary for an effective reorganization. DENY alternative request under § 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth
Movant(s):
Mission Financial Services Represented By Robert S Lampl
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC dba GM FINANCIAL
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1) and (2). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY alternative request under § 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Denise Renella Pro Se
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: BAYS PROPERTIES, LLC
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY requests under § 3, 7, and 9 for lack of cause shown. DENY alternative request under
§ 12 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
10:00 AM
Movant(s):
Bays Properties, LLC Represented By Robert C Thorn
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: MICHELLE SINGLETON
EH
Docket 15
The Court will DENY the motion. 11 U.S.C. § 362(c)(3)(B) requires that a hearing on a motion to continue the automatic stay be completed within thirty days of the petition date. Movant set the instant hearing thirty-three days after the petition date.
APPEARANCES REQUIRED.
Debtor(s):
Michelle Singleton Represented By Paul Y Lee
Movant(s):
Michelle Singleton Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CARLOS GUTIERREZ
EH
Docket 9
The Court is inclined to GRANT the motion, continuing the automatic stay as to all creditors. Specifically, the Court finds that the declaration of Debtor is adequate to overcome the § 362(c)(3)(C) presumption that the case was filed in bad faith.
APPEARANCES REQUIRED.
Debtor(s):
Carlos Gutierrez Represented By Scott Kosner
Movant(s):
Carlos Gutierrez Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JS MCA HUNTER PARK LP
CASE DISMISSED 1/9/18
EH
Docket 15
Service is Improper Opposition: None
Pursuant to Local Rule 4001-1(c)(1)(C), motions for relief from the automatic stay must be served on the debtor. Here, Movant did not serve the motion on Debtor.
Therefore, the Court is inclined to CONTINUE the hearing to February 27, 2018 at 10:00 a.m. for Movant to file and serve the motion and notice of continued hearing and opportunity to object on Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Antonio Ochoa Represented By Qais Zafari
10:00 AM
Movant(s):
JS MCA Hunter Park LP Represented By Nicholas Firetag
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: HITACHI CAPITAL AMERICA CORP
Also #26 EH
Docket 60
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Hitachi Capital America Corp. Represented By Richard A Solomon
2:00 PM
U.S.C. §365(d)(5) Payments; and for Relief from Stay in the Event of Rejection of Lease (Mroczynski, Randall)
Also #25 EH
Docket 52
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Trans Lease, Inc. Represented By
Randall P Mroczynski
11:00 AM
Docket 8
01/24/2018
BACKGROUND
On December 12, 2017 ("Petition Date"), Maisha Mesa (the "Debtor") filed a petition for chapter 7 relief.
On December 29, 2017, the Office of the United States Trustee ("UST") filed a Motion to Dismiss Chapter 7 Case with a Re-Filing Bar (the "Motion"). No opposition has been filed.
DISCUSSION
Section 707(b)(3) was added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). In re Siegenberg, 2007 WL 6371956 (2007). Since BAPCPA, the Ninth Circuit has not established a standard for determining a finding of "bad faith" in chapter 7 cases under § 707(b)(3)(A). Id.
However, a few bankruptcy courts have addressed the issue. Siegenberg at *3-4. (citing In re Mitchell, 357 B.R. 142 (Bankr.C.D.Cal.2006)). The court in Mitchell, a chapter 7 case, used a nine-part test borrowing both from the Ninth Circuit's pre- BAPCPA "substantial abuse" test and from chapter 11 and 13 bad faith cases. Id. at 153–156 (citing: In re Price, 353 F.3d 1135, 1139–40 (9th Cir.2003)(using a six factor "totality of the circumstances test" to determine "substantial abuse" under pre- BAPCPA 707(b)); In re Leavitt, 171 F.3d 1219 (9th Cir.1999)(dismissing a chapter 13 for cause under §§ 349(a) and 1307(c), after a finding of bad faith employing a four part "totality of the circumstances" test)).
The court in Mitchell considered the following nine factors in determining whether "the debtor's intention in filing bankruptcy is inconsistent with the Chapter 7 goals of providing a ‘fresh start’ to debtors and maximizing return to creditors" and
11:00 AM
whether the case should thus be dismissed under § 707(b)(3)(A):
Whether the chapter 7 debtor has a likelihood of sufficient future income to fund a chapter 11, 12, or 13 plan which would pay a substantial portion of the unsecured claims;
Whether debtor's petition was filed as a consequence of illness, disability, unemployment, or other calamity;
Whether debtor obtained cash advances and consumer goods on credit exceeding his or her ability to repay;
Whether debtor's proposed family budget is excessive or extravagant;
Whether debtor's statement of income and expenses misrepresents debtor's financial condition;
Whether debtor made eve of bankruptcy purchases;
Whether debtor has a history of bankruptcy petition filings and dismissals;
Whether debtor has invoked the automatic stay for improper purposes, such as to delay or defeat state court litigation;
Whether egregious behavior is present.
Mitchell at 154–55. No single factor is considered dispositive, Id. at 155 (citing: In re Powers, 135 B.R. 980, 991–92 (Bankr.C.D.Cal.1991); In re Marshall, 298 B .R. 670, 681 (Bankr.C.D.Cal.2003)), and fraudulent intent is not required for a finding of bad faith. Id. (citing Leavitt, 171 F.3d at 1224).
Here, the UST asserts as grounds for dismissal that:
The Debtor filed an incomplete petition on the Petition Date;
The Debtor failed to file the remaining documents by the Court-ordered deadline;
This is the Debtor’s third bankruptcy case filed since October 4, 2017 (Ex. 4);
The prior two cases were dismissed for failure to comply with the debtor’s duties;
The Court further takes judicial notice of multiple additional prior cases indicated on the Court’s docket as follows:
Case Number 17-18982, Chapter 13 filed in California Central Bankruptcy on 10/27/2017, Dismissed for Failure to File Information on 11/29/2017;
Case Number 17-18306, Chapter 13 filed in California Central Bankruptcy on 10/04/2017, Dismissed for Failure to File Information
11:00 AM
on 10/24/2017;
Case Number 07-11850, Chapter 13 filed in California Central Bankruptcy on 04/08/2007, Dismissed for Other Reason on 05/25/2007;
Case Number 03-20834, Chapter 13 filed in California Central Bankruptcy on 07/18/2003, Dismissed for Other Reason on 02/24/2004;
Case Number 04-14569, Chapter 13 filed in California Central Bankruptcy on 04/13/2004, Dismissed for Other Reason on 08/17/2004; and
Case Number 03-13994, Chapter 7 filed in California Central Bankruptcy on 03/17/2003, Standard Discharge on 07/01/2003.
The UST asserts that based on the dismissal of the Debtor’s prior cases for failure to file documents, the failure of the Debtor to comply with the duties of a debtor in two recent prior cases, the history of dismissed filings, and the filing of the instant case seemingly for no other purpose than to frustrate creditors, dismissal with a bar is warranted.
Here, for the reasons set forth by the UST, based primarily on the history of filings, and the repeated conduct of the Debtor in failing to comply with Court- imposed deadlines, the Court finds that cause exists to dismiss the Debtor’s case. Additionally, the Debtors apparent attempts to file bankruptcy for the sole purpose of forestalling creditors warrants a one-year bar under the Court’s § 105 and § 349 authority as requested by the UST.
TENTATIVE RULING
Based on the foregoing, including the Debtor’s failure to file opposition which this Court deems as consent to the granting of the Motion under LBR 9013-1(h), the Court is inclined to GRANT the Motion in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Maisha Tamu Mesa Pro Se
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
U.S. Trustee EH
Docket 17
BACKGROUND
On September 7, 2017, Rowena and Emerald Argonza (collectively, the "Debtors") filed for chapter 7 relief.
On December 11, 2017, the Office of the United States Trustee ("UST") filed a Motion for Extension of Time to File a Complaint Objecting to Discharge ("Motion"). In support of the Motion, the UST asserts that the Debtors’ schedules indicate that they served as officers of a related chapter 11 case, Angeles of the Valley Hospice Care, LLC. The docket in the related chapter 11 case indicates that the Debtors were to receive $18,100 in insider compensation per month plus $1,000 in car allowances.
Service of the Motion was proper and no opposition has been filed.
DISCUSSION
Pursuant to Federal Rule of Bankruptcy Procedure ("FRBP") 4004 and 1017, Trustee seeks to extend the deadline for Trustee and U.S. Trustee to file a complaint objecting to Debtor’s discharge under 11 U.S.C. § 727 and the deadline to seek dismissal under § 707 , for an additional 60 days to January 25, 2018.
Under FRBP 4004(a) and 1017(e), on a motion of any party in interest, the court may for cause extend the time to object to discharge or to seek dismissal. Fed. R. Bankr. P. 4004, 1017.
As a matter of practice what constitutes "cause" rests within the discretion of the bankruptcy court. See In re James, 187 B.R. 395, 397 (Bankr. N.D. Ga. 1995).
11:00 AM
Also, Courts are generally unified in the view that the term "for cause" should receive a liberal construction. Id. Notwithstanding that fact, however, a creditor must exhibit some minimum degree of due diligence prior to seeking such an extension, and the Court should not allow the motion to serve as license for a baseless "fishing expedition." Id; See also In re Leary, 185 B.R. 405, 406 (Bankr. D. Mass. 1995). To establish cause movant must (1) show that he had, with reasonable diligence, attempted to investigate the facts and circumstances, and (2) offer a reasonable explanation of why that investigation could not be completed within the allotted time. See Bomarito, 448 B.R. at 251.
The UST has presented evidence that they sought financial records of the related to their compensation in September 2017 and that the Debtors produced incomplete financial records in October 2017. The UST asserts that they Debtor’s counsel indicated that they require additional time to produce the documents sought by the UST. Finally, Debtors’ counsel indicated to the UST that the Debtors were agreeable to the extension of discharge and dismissal deadlines.
TENTATIVE RULING
Accordingly, based on the record provided by the UST and the failure of the Debtors to file opposition, the Court is inclined to GRANT the relief requested and provide the UST an extension for the filing of a complaint under § 727, and/or for the filing of a motion to dismiss under § 707, to February 12, 2018.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Rowena I Argonza Represented By Julie J Villalobos
Joint Debtor(s):
Emerald D Argonza Represented By Julie J Villalobos
Movant(s):
United States Trustee (RS) Represented By Everett L Green
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
(Holding Date) From: 9/27/17 EH
Docket 29
On July 12, 2017, an involuntary Chapter 7 petition was filed against Integrated Wealth Management, Inc. ("Debtor"). After an extension of the applicable deadline, Debtor filed its answer on September 12, 2017.
Prior to the answer being filed, One El Paseo North, LLC ("Landlord") filed a motion for immediate payment of its gap rent claim pursuant to § 502(f). Landlord asserts that it holds a gap rent claim totaling $27,776.73, covering the time period between the filing of the involuntary petition, on July 12, 2017, and the time Debtor abandoned the premises, on August 18, 2017.
11:00 AM
11 U.S.C. § 502(f) states:
(f) In an involuntary case, a claim arising in the ordinary course of the debtor’s business or financial affairs after the commencement of the case but before the earlier of the appointment of the appointment of a trustee and the order for relief shall be determined as of the date such claim arises, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection
(d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.
While Landlord is correct that the Bankruptcy Code allows payment of ordinary course business claims that accrue during the gap period, it is unclear what the legal justification is for Landlord’s request that the Court order the gap claim to be paid immediately. 11 U.S.C. § 507(a)(3) specifically affords debts incurred pursuant to § 502(f) third-priority status. If the estate is administratively insolvent, or does not have funds to pay all first, second, and third-priority claims, then Landlord would not receive full payment of its claim. Because Landlord may not receive full payment of its claim, it would be inappropriate to order immediate payment of its claim.
Debtor further objects to the issuance of an order allowing Landlord’s claim, asserting that a motion to allow a claim for an unpaid § 502(f) claim is procedurally improper. The Court disagrees with Debtor’s contention that a party cannot seek allowance of an administrative claim separate from filing a proof of claim. As an order for relief has not yet been entered, however, the relief requested is premature, since, among other things, a Chapter 7 trustee has not had the opportunity to vet the request. As an aside, the Court notes that Landlord has filed a proof of claim, but it did not request administrative priority.
11:00 AM
The Court will DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
Movant(s):
One El Paseo North, LLC Represented By Thomas J Polis
11:00 AM
Docket 39
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: $ 6,278.48 Trustee Expenses: $ 52.26
Attorneys Fees: $ 10,045.50 Attorneys Expenses: $ 456.27
Accountant: $1,000
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative. Additionally, the Trustee is authorized to pay all other administrative costs outlined in the TFR.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Kelly Arnold Represented By
Todd L Turoci
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
11:00 AM
EH
Docket 15
BACKGROUND
On November 21, 2016 ("Petition Date"), Joyce Miller Black ("Debtor") filed her petition for chapter 7 relief. Larry Simons is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the bankruptcy estate is the right to refunds to which the Debtor was entitled in 2016. The Trustee sought copies of the Debtor’s state and federal tax returns but only received a copy of the Debtor’s Federal 2016 tax returns.
On December 18, 2017, the Trustee filed his Motion for Turnover of Property held by Debtor pursuant to 11 USC 542(a) and (e) (the "Motion"). The Motion was properly served on the Debtor and no opposition has been filed.
DISCUSSION
Under the Bankruptcy Code, "any entity, other than a custodian, in possession, custody or control 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 " Id. § 542(a). Additionally, subject to any applicable privilege, after
notice and a hearing, the court may order an attorney, accountant, or other person that holds recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs, to turn over or disclose such recorded information to the trustee. 11 U.S.C. § 542(e).
The Trustee seeks an order directing the Debtor to turn over to him 92% (or
$1,832.64) of her 2016 tax refunds from her state and federal tax returns for 2016 (which the Trustee asserts cannot be exempted), and an order directing turnover by the
11:00 AM
Debtor of a copy of her 2016 State of California tax return.
In support of the Motion, the Trustee has filed a declaration attesting to his requests to the Debtor’s counsel for turnover of the funds and the state tax return. To date, the Debtor has not complied with the Trustee’s informal requests. Pursuant to § 542 (a) and (e), in addition to the Debtor’s failure to file opposition to the Trustee’s Motion, which this Court deems as consent to the granting of the relief requested pursuant to LBR 9013-1(h), the Court finds that the Trustee has adequately demonstrated that the relief requested is warranted.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the Motion in its entirety. Trustee to appear and discuss setting of deadlines for turnover. The Trustee is authorized to appear telephonically.
APPEARANCES REQUIRED.
Debtor(s):
Joyce Miller Black Represented By George P Hobson Jr
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 60
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $8,955.77 |
Trustee Expenses: | $40 |
Attorneys Fees: | $11,024 |
Attorneys Expenses: | $448.28 |
Accountant Fees: | $1,863 |
Accountant Expenses: $253.30
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Todd Christopher Tyrrell Represented By Matthew Abbasi
11:00 AM
Joint Debtor(s):
Kelly Jean Tyrrell Represented By Matthew Abbasi
Trustee(s):
Arturo Cisneros (TR) Represented By
D Edward Hays Chad V Haes Laila Masud
11:00 AM
Docket 48
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $3,136.98 Trustee Expenses: $111.59
The Trustee may submit on the tentative. Additionally, the flat fee payments to Counsel and Accountant are approved for payment by the Trustee.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Jaime Gutierrez Reyes Represented By David R Chase
Trustee(s):
Arturo Cisneros (TR) Represented By
Misty A Perry Isaacson
11:00 AM
Docket 28
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: $ 2,453.11 Trustee Expenses: $ 69.45
Accountant Fees: $3,702.50 Accountant Expenses $305.70
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPERANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Clausen and Cobb Management Represented By Joy Dhokia
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Docket 228
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: $ 3,250 Trustee Expenses: $ 226.94
Attorneys Fees: $ 9,891 Attorneys Expenses: $ 666.91
Accountant: $1,000
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative. Additionally, the Trustee is authorized to pay all other administrative costs outlined in the TFR.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
S.T.I. Inc. Trucking and Materials Represented By
Stephen R Wade
W. Derek May
11:00 AM
Trustee(s):
Amelia Puertas-Samara
Todd A. Frealy (TR) Represented By Anthony A Friedman
Levene Neale Bender Yoo & Brill LLP
11:00 AM
Docket 142
01/24/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: $ 5,068.12
Attorneys Fees: $ 27,869.00 (per Stipulation with UST) Attorneys Expenses: $ 1,174.47
Accountant: $1,825
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative. Additionally, the Trustee is authorized to pay all other administrative costs outlined in the TFR.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
David J. Varela Represented By Thomas J Tedesco
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Represented By Nina Z Javan
Meghann A Triplett Noreen A Madoyan
11:00 AM
From: 11/29/17 EH
Docket 45
The Court is inclined to allow the parties the opportunity to obtain appraisals or other valuations of the subject property.
Alternatively, Debtor’s evidence of the amount of the lien of Wells Fargo refers to the balance as of the filing of the motion. While Debtor is free to brief the appropriate time for determining the amount of a lien, in the absence of any argument on the issue, the Court concludes that the appropriate date is the petition date.
APPEARANCES REQUIRED.
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
11:00 AM
Movant(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
11:00 AM
Docket 118
BACKGROUND
On December 27, 2013 (the "Petition Date"), Master Design Inc (the "Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee (the "Trustee").
On December 23, 2015, the Trustee filed his Complaint against Defendants Test-Rite Products Corp, Test-Rite International (U.S.) Co. LTD., Test-Rite International Co. LTD ("Test-Rite Taiwan"), Judy Lee, Chester Lee, and Christina Ma (collectively, the "Defendants"). The Trustee’s initial Complaint included claims for recovery of Fraudulent Transfers (both for actual and constructive fraud), for conversion and unlawful payment of dividends, for breach of fiduciary duty, and finally, seeking declaratory relief as to alter ego (the "Complaint").
On April 27, 2016, the Court held hearings on the Defendants’ first motions to dismiss the Complaint which were granted in part and denied in part, with leave given to the Trustee to amend his Complaint. On May 25, 2016, the Trustee filed his First Amended Complaint (the "FAC").
Subsequently, the Court heard and determined Defendants’ motions to dismiss the FAC in August 2016. Answers were filed thereafter.
11:00 AM
On December 28, 2017, the Trustee filed a Motion To Approve Compromise
Resolving All Pending Litigation (the "Motion"). Service is proper and the Motion is unopposed.
DISCUSSION
Rule 9019(a) authorizes the bankruptcy court to approve a compromise or settlement on the trustee's motion and after notice and a hearing. The bankruptcy court must consider all "factors relevant to a full and fair assessment of the wisdom of the proposed compromise." Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S. Ct. 1157, 20 L. Ed. 2d 1 (1968). In
other words, the bankruptcy court must find that the settlement is "fair and equitable" in order to approve it. Martin v. Kane (In re A & C Props.), 784 F.2d 1377, 1381 (9th Cir. 1986).
In conducting this inquiry, the bankruptcy court must consider the following
factors:
Id.
the probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
The bankruptcy court enjoys broad discretion in approving a compromise because it "is uniquely situated to consider the equities and reasonableness [of it] " United
States v. Alaska Nat'l Bank (In re Walsh Construction, Inc.), 669 F.2d 1325, 1328 (9th Cir. 1982). As stated in A & C Props.:
The purpose of a compromise agreement is to allow the trustee and the creditors to avoid the expenses and burdens associated with litigating sharply contested and dubious claims. The law favors compromise and
11:00 AM
not litigation for its own sake, and as long as the bankruptcy court amply considered the various factors that determined the reasonableness of the compromise, the court's decision must be affirmed.
Id. (citations omitted).
On the other hand, even though the bankruptcy court has wide latitude in approving compromises, its discretion is not completely unfettered. See Woodson v. Fireman's Fund Ins. Co. (In re Woodson), 839 F.2d 610, 620 (9th Cir. 1988). The trustee bears the burden of proving to the bankruptcy court that the settlement is fair and equitable and should be approved. In re A&C Props., 784 F.2d at 1382.
Here, the Trustee has provided an adequate basis for settlement. In particular, the Trustee has outlined the potential difficulties in collection and the expenses and problems associated with potential extrajudicial proceedings in Taiwan. These two factors alone weigh heavily in favor of granting the Motion. However, additionally, the Court is itself familiar with the complexity of the underlying factual and legal issues related to the transfer pricing scheme allegations brought by the Trustee and the hurdles presented by discovery issues in the case – in particular, the need to translate voluminous documents from Chinese to English for purposes of analysis and litigation. Based on the foregoing, the Court concludes that the Trustee’s settlement for a payment of $735,000 to the estate is reasonable and in the best interests of creditors.
TENTATIVE RULING
Based on the foregoing, the Motion is GRANTED in its entirety. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
11:00 AM
(Holding date)
From: 8/31/17, 10/2/17, 10/18/17, 11/15/17, 12/20/17
EH
Docket 110
The Court having received informal notice of a pending settlement between the parties, the hearing on this matter shall be continued to February 14, 2018, at 11:00 a.m. for the parties to finalize an agreement. Should the matter be resolved prior to the continued hearing, the February 14 hearing shall come off calendar.
APPEARANCES WAIVED. Telephonic appearances are authorized for the February 14, 2018, continued hearing.
On January 28, 2011, Brad & Deborah Stoddard ("Debtors") filed a Chapter 13 voluntary petition. On May 24, 2011, Debtors’ Chapter 13 plan was confirmed. The plan contained the following provision, section V.F.: "The debt of american Education Services will be discharged; the school has been stripped of accreditation and is on probation." On December 5, 2016, Debtors received a discharge, and, on January 13, 2017, the case was closed.
11:00 AM
On May 11, 2017, Debtors filed a motion for an order to show cause why creditor American Educational Services ("AES") should not be held in contempt court, and for damages and attorney’s fees, for intentionally violating the discharge injunction.
Because of inadequate service, the motion was originally denied without prejudice, and Debtors refiled the motion on June 1, 2017. AES filed its opposition on June 8, 2017. At a hearing on the matter on July 27, 2017, the Court continued the matter to October 2, 2017.
On July 31, 2017, the Court issued its Order to Show Cause why Matthew Resnik ("Resnik"), Brad Stoddard, and Deborah Stoddard should not be sanctioned for including a prohibited provision in a Chapter 13 plan (the "OSC"). Debtors filed their opposition on August 14, 2017. Resnik filed his opposition on August 17, 2017. AES filed its reply on August 24, 2017. Resnick filed supplemental responses on September 21 and 22, 2017.
Introduction
The OSC is issued in light of, and accordance with, the Supreme Court’s decision in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010). In Espinosa, the bankruptcy court had confirmed a Chapter 13 plan which purported to discharge student loan debt without complying with the applicable procedural requirements.
After intercepting debtor’s income tax refund to use towards payment of student loans, the creditor argued that the bankruptcy court’s order confirming the debtor’s Chapter 13 plan should be declared void. The Supreme Court held that, absent a jurisdictional or due process violation (which was not present) the bankruptcy court’s legal error in confirming the Chapter 13 plan with a provision that impermissibly discharged student loan debt, did not render the order void. At the conclusion of its opinion, the Supreme Court opined:
11:00 AM
We acknowledge the potential for bad-faith litigation tactics. But expanding the availability of relief under Rule 60(b)(4) is not an appropriate prophylaxis. As we stated in Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), "debtors and their attorneys face penalties under various provisions for engaging in improper conduct in bankruptcy proceedings." Id. at 644; see also FED. R. BANKR. P. Rule 9011. The specter of such penalties should deter bad-faith attempts to discharge student loan debt without the undue hardship finding Congress required.
Espinosa, 559 U.S. at 278. Here, the Court is tasked with interpreting and implementing the guidance provided by the Supreme Court in Espinosa.
Debtors and Resnick have filed separate responses to the Court’s OSC. Debtors have raised five arguments in their opposition: (1) that the Court already found that the plan was filed in good faith; (2) that the plan must be given res judicata effect; (3) that the Court is exceeding its discretionary sanctioning authority; (4) that the OSC is an illegal ex post facto law; and (5) that FED. R. BANKR. P. Rule 9011 is inapplicable.
Resnick offers the following categories of arguments in his opposition: (1) use of the Court’s inherent sanctioning authority is inappropriate here; (2) Rule 9011 sanctions require a contempt finding; (3) Section 105 is inapplicable; and (4) the plan provision at issue is not prohibited. The Court will analyze the respondents’ arguments separately.
Debtors’ Opposition
The Court’s Good Faith Finding
11 U.S.C. § 1325(a)(3) states:
11:00 AM
Except as provided in subsection (b), the court shall confirm a plan if –
(3) the plan has been proposed in good faith and not by any means forbidden by law
Debtors argue that: "[i]t necessarily follows [from § 1325(a)(3)] that the Court has already made an express finding that the Plan was filed in good faith." This result does not necessarily follow from the language of the statute. The plain language of § 1325(a) operates to eliminate the discretion of the court if the court finds that the debtor has satisfied the nine subsections of § 1325(a); the provision does not state the consequences of a finding that some, but not all, of the § 1325(a) subsections have been satisfied. As is stated by the leading bankruptcy treatise:
The standards set forth in section 1325(a), however, are not requirements that must be met in every case before a plan can be confirmed. Unlike section 1322(a), section 1325(a) does not state that "the plan shall" comply with its listed criteria. Nor does it state, as does section 1129(a), that the court shall confirm the plan only if certain requirements are met. Instead it states only that if its criteria are met the court must confirm the plan. Therefore, the court has discretion to confirm a plan that does not comply with all of the standards of section 1325(a), particularly if no party objects.
8 COLLIER ON BANKRUPTCY ¶ 1325.01 (16th ed. 2016) (footnotes omitted).
Despite the plain language of the statute, the Ninth Circuit Court of Appeals, without any independent analysis, and relying on an out of circuit bankruptcy court decision, has determined that the requirements of § 1325(a) are mandatory for Chapter 13 plan confirmation. See In Chinichian, 784 F.2d 1440, 1443-44 (9th Cir. 1986) ("For a court to confirm a plan, each of the requirements of section 1325 must be present and the debtor has the burden of proving that each element has been met.") (citing In re Elkind, 11 B.R. 473, 476 (Bankr. D. Colo. 1981)). While it remains unclear from
11:00 AM
where the mandatory characterization of § 1325(a) arose, a variety of courts have, in passing, assumed that the § 1325(a) standards are mandatory for plan confirmation. See, e.g., Assocs. Comm. Corp. v. Rash, 520 U.S. 953, 956 (1997) ("To qualify for confirmation under Chapter 13, the Rashes’ plan had to satisfy the requirements set forth in § 1325(a) of the Code."); Shaw v. Aurgroup Fin. Credit Union, 552 F.3d 447, 459 (6th Cir. 2009) ("Numerous district and bankruptcy courts outside the Fifth, Ninth, Tent, and Eleventh Circuits, including courts within this circuit, have also held, suggested, or assumed that the provision in § 1325(a) are mandatory.") (collecting cases). But see In re Szostek, 886 F.2d 1405, 1411 (3rd Cir. 1989) ("On the other hand, if the conditions of § 1325 are not met, although the requirements of § 1322 are fulfilled, the court has the discretion to confirm the plan. If Congress had intended for
§ 1325(a) to be mandatory, it could have included that requirement with the requirements already listed in § 1322); see also Matter of Escobedo, 28 F.3d 34, 34 (7th Cir. 1994) ("We note, however, as did the court in Szostek, that while the provisions of § 1325(a)(5) may be discretionary[,] the requirements of § 1322(a)(2) are mandatory.). Indeed, even Espinosa appears to implicitly assume that the § 1325(a) requirements are mandatory. See 559 U.S. 260, 277 ("That is because § 1325(a) instructs a bankruptcy court to confirm a plan only if the court finds, inter alia, that the plan complies with the ‘applicable provisions’ of the Code.") (emphasis added). Therefore, it would appear that binding case law suggests that the § 1325(a) requirements, including good faith, are mandatory requirements for confirmation.
Res Judicata
While the Court accepts Debtors’ argument that, by confirming their Chapter 13 plan, the Court implicitly found that the plan was filed in good faith, the Court rejects Debtors’ argument that that finding is res judicata with regard to the Court. 11 U.S.C.
§ 1327(a) states: "The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." The Court is not a creditor and Debtors have advanced no argument as to how
§ 1327(a) would prevent the Court from revisiting its finding of good faith. In fact, the Ninth Circuit Court of Appeals opinion that concluded the § 1325(a) requirements were mandatory stated the following: "Because section 1325(a)(3) of Title 11 requires the Chinichians to propose their plan in good faith, the bankruptcy court has jurisdiction to revoke a plan if the plan was not filed in good faith." In re Chinichian, 784 F.2d 1440, 1442 (9th Cir. 1986). The Ninth Circuit’s further comments indicate
11:00 AM
that it believed such powers were expansive:
The Chinichians argue, however, that because section 1330 is a specific statute it should govern the more general section 105. The Mancari rationale that a specific statute cannot be nullified by a more general one is only applicable where a conflict exists.
Section 1330 provides a method of revoking a confirmation order "on request of a party in interest." While it does not specifically authorize such a revocation by the court sua sponte, it does not prohibit such action. Section 105 constitutes authority for the court to issue any order necessary to carry out the provisions of the Code. That reservoir of power in no manner conflicts with the authority to act upon the request of an interested party, but constitutes a supplemental method of revocation in the event of fraud. It would be absurd to hold that the bankruptcy court is powerless to correct a fraud unless first requested by an interested party, and that is not what section 1330 provides.
Section 105 sets out the power of the bankruptcy court to fashion orders as necessary pursuant to the purposes of the Bankruptcy Code.
Further, a bankruptcy court is a court of equity. As a court of equity, it may look through form to the substance of a transaction and devise new remedies where those at law are inadequate. Further, it can modify or vacate its order so long as no intervening right has become vested in reliance thereon. Thus, the bankruptcy court had equitable power to revoke its order partially confirming the Chinichians’ plan once it recognized the Chinichians did not file their plan in good faith as required by section 1325(a)(3).
Id. at 1442-43 (citations omitted).
11:00 AM
Debtors’ argument that § 1327 operates to prevent the Court from modifying its implicit good faith finding when confirming the plan lacks merit. The statute states that the terms of the provisions of a confirmed plan are binding on the debtor and creditors. The Court is not a creditor or a debtor nor is the Court’s good faith finding a provision of a confirmed plan. Nor does res judicata prevent a court from revoking or amending its own order. Such a principle would eliminate the ability to revoke or modify a judgment altogether, rendering obsolete FED. R. CIV. P. Rules 59 & 60, in addition to many others legal provisions. Debtors’ argument that the Court is bound by its own previous finding due to res judiciata is not compelling.
The Court Lacks Authority to Issue Sanctions
Debtors’ argument that the Court lacks authority to issue sanctions can be summarized in the following: (1) the Court is precluded from finding that the plan was proposed in bad faith due to res judicata; and (2) the Court must find that the plan was proposed in bad faith for sanctions to be warranted. Because the Court rejects (1), as outlined above, Debtors’ argument must fail.
The OSC is an "Illegal Ex Post Facto Law"
In their fourth argument, Debtors argue that this OSC is an ex post facto law. As noted by Debtors, Art. 1 §§ 9 & 10 of the Constitution prohibit ex post facto laws. Article 1 of the Constitution deals with the legislative branch – the branch of the government that makes laws. The Judicial Branch does not make laws. Debtors’ argument that a court order is an ex post facto law is therefore, necessarily, invalid.
Rule 9011 is Inapplicable
FED. R. BANKR. P. Rule 9011(b)(2) states:
11:00 AM
By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law
FED. R. BANKR. P. Rule 9011(c)(1)(B) states: "[O]n its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto."
Debtors’ nine subsection argument why FED. R. BANKR. P. Rule 9011 is inapplicable is rather chaotic and disorganized. Regardless, the Court acknowledges that, as to Debtors, Rule 9011 sanctions are inapplicable due to the operation of Rule 9011(c)(2) (A). Therefore, the Court agrees that Rule 9011 cannot operate as the source of sanctions against Debtors.
Resnick’s Opposition
A. Inherent Sanctioning Authority
The Supreme Court has stated: "it is firmly established that the power to punish for contempts is inherent in all courts." Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (quoting Ex parte Robinson, 19 Wall. 505, 510 (1874)); see also Fink v. Gomez, 239
11:00 AM
3d 989, 992 (9th Cir. 2001) ("[T]he district court has the inherent authority to impose sanctions for bad faith, which includes a broad range of willful improper conduct."). The Ninth Circuit has stated: "Itel teaches that sanctions are justified when a party acts for an improper purpose – even if the act consists of making a truthful statement or a non-frivolous argument or objection. Fink, 239 F.3d at 922; see also In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (discussing bad faith and willful misconduct).
Nevertheless, as Resnick states: "when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power." Chambers, 501 U.S. at 50. Because the Court believes that the existing framework provides an adequate basis for sanctions in this type of situation, the Court need not rely on its inherent sanctioning authority.
B. Rule 9011
When imposing sanctions, sua sponte, under FED. R. BANKR. P. Rule 9011, "sanctions ‘will ordinarily be imposed only in situations that are akin to a contempt of court.’" United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1116 (9th Cir. 2001) (citing Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998); see also FED. R. CIV. P. Rule 11, Advisory Committee Notes ("Since show cause orders will ordinarily be issued only in situations that are akin to a contempt of court, the rule does not provide a ‘safe harbor’ to a litigant for withdrawing a claim, defense, etc., after a show cause has been issued on the court’s own initiative."). "[P]rior to imposing court-initiated sanctions, the district court is required to determine whether counsel’s conduct is ‘akin to contempt.’" Gonzalez v. Texaco Inc., 344 Fed. Appx. 304, 308 (9th Cir. 2009) (quoting R&D Latex Corp., 242 F.3d 1102, 1118)).
In this situation, the Court defers to Bankruptcy Judge TeSelle:
At the hearing on the motions to dismiss conducted by the Court in these cases
11:00 AM
on May 2, 2000, it was clear to the Court that debtors’ counsel included these plan provisions in the hope that they would trap an unwary student loan creditor. If a plan containing a student loan discharge provision is confirmed, debtors and their counsel argue that the student loan obligation is discharged under the theory of res judicata, improperly relying on a skewed interpretation of the opinion of the Tenth Circuit Court of Appeals in In re Andersen, 179 F.3d 1253 (10th Cir. 1999) to support their position. If an objection to confirmation is raised by either the Trustee or the student loan creditor, the offending language is simply removed from the plan, and debtors are no worse off for their attempt. The Court will not permit this type of gamesmanship on the part of debtors and their counsel to continue. Conduct such as this has no place in the practice of bankruptcy law, and will not be tolerated by this Court.
The citation of the opinion of the Tenth Circuit in Andersen, supra, as authority for the practice of intentionally inserting language in a chapter 13 plan that violates the Bankruptcy Code and Rules, and as authorizing counsel to stand by silently and thereby induce the Court to confirm a plan that contains a provision that counsel knows violates the Bankruptcy Code and Rules, is at once offensive and specious. Counsel appearing before this Court are officers of the Court and are ethically obligated to inform the Court if they are aware of the existence of a plan provision that renders the plan non- confirmable.
Rather than recognizing their obligations to the Court and to opposing counsel, counsel for debtors in these cases go so far as to suggest that they are compelled by Andersen to recommend that their clients include these unlawful plan provisions, implying that their failure to do so might be an act of professional negligence. The Court does not believe that a fair reading of the opinion of the Tenth Circuit in Andersen can reasonably lead one to conclude that the Tenth Circuit intended to encourage the practice of intentionally inserting unlawful plan provisions in the hope that confirmation of the plan will occur and the time for appeal will pass before such provisions are noticed so that debtors and their counsel can then claim res judicata. Such a skewed reading of Andersen fails to account for the ethical obligations owed by members of the bar to the Court and to each other.
11:00 AM
This is particularly true given the volume of chapter 13 filings in this district, and the fact that the Court does not have the time to independently review every chapter 13 plan and confirmation order to determine whether an attempt to unlawfully discharge a student loan obligation is being made. Because the Court has apparently been unable to rely on the ethical conduct of some of the counsel representing chapter 13 debtors appearing before it, the Court, up to his point in time, has been forced to rely on a party in interest other than the debtor to point out those instances in which such student loan discharges have been attempted through plan provisions. Where the Court has become aware of such attempts, either through objections by the student loan creditor or through the inclusion of such a provision in the order confirming the chapter 13 plan, the Court has refused to confirm the plan containing such language, and has stricken language from confirmation orders attempting to effect a discharge of student loan indebtedness in this manner.
. . .
In light of the existing case law concerning the impropriety of the inclusion of such student loan discharge provisions in chapter 13 plans, and the unambiguous language of the Bankruptcy Code and Rules, the Court believes that the inclusion of such a provision in a chapter 13 plan and/or order confirming a chapter 13 plan is both unethical and sanctionable conduct pursuant to Bankruptcy Rule 9011. Bankruptcy Rule 9011(b) concerns representations made to the Court. It states that by presenting a paper to the Court, an attorney or unrepresented party certifies to the best of his or her knowledge, information and belief, formed after a reasonable inquiry under the circumstances, that the legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. See FED. R. BANKR. P. Rule 9011(b)(2).
. . .
11:00 AM
The Court refuses to allow counsel for debtors to turn the inclusion of a student loan discharge provision in a chapter 13 plan into a "can’t lose" proposition. The Court therefore concludes that Andersen provides no protection from the imposition of sanctions under Rule 9011(b) in cases in
which a student loan discharge provision is included in a confirmed chapter 13 plan.
In re Hensley, 249 B.R. 318, 320-323 (Bankr. W.D. Okla. 2000).
C. Section 105
11 U.S.C. § 105(a) states:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary to enforce or implement court orders or rules, or to prevent an abuse of process.
Resnick offers a single argument in support of his position that § 105(a) is inapplicable: that the provision only applies to violations of a specific court order. Resnick cites In re Dyer in support of this statement. 322 F.3d 1178, 1196 (9th Cir. 2003) ("Civil contempt authority allows a court to remedy a violation of a specific order (including ‘automatic’ orders, such as the automatic stay or discharge injunction).").
11:00 AM
Dyer does not explicitly state that § 105(a) is strictly limited to remedying violations of specific court orders, nor does it cite any authority from which it could be inferred that the Dyer court had such an opinion. Indeed § 105(a) explicitly mentions, in addition to court orders, rules and "abuse of process"; the latter might be invoked in the absence of a specific court order.
The Supreme Court, on two occasions after Dyer, has written an opinion which indicates that § 105 is not strictly limited to correcting violations of specific court orders. First, in Marrama v. Citizens Bank of Mass., the Supreme Court wrote:
On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate to prevent an abuse of process described in § 105(a) of the Code, is surely adequate to authorize an immediate denial of a motion to convert filed under § 706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.
549 U.S. 365, 375 (2007) (footnote omitted). The "abuse of process" referenced in Marrama was not a violation of a specific court order, but, rather, "an unmeritorious attempt to qualify as a debtor under Chapter 13." Id.
Second, in Law v. Siegel, the Supreme Court stated: "Section 105(a) confers authority to ‘carry out’ the provisions of the Code." This statement is natural, since the first sentence of § 105(a) states: "[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title."
Here, the Court concludes that a specific and definite court order has not been violated. Nevertheless, the reconciliation of Dyer and Marrama helps illustrate the proper approach forward. The Ninth Circuit Court of Appeal’s instructions that
11:00 AM
sanctions under § 105(a) are appropriate for violation of a specific and definite court order is derived from the non-bankruptcy standard for civil contempt. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City & Cnty. of S.F., 968 F.2d 850, 856 n.9 (9th Cir. 1992)) ("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. The burden then shifts to the contemnors to demonstrate why they were unable to comply."). Nevertheless, as illustrated by Marrama, the Court’s authority under § 105(a) is not strictly limited to issuing sanctions for civil contempt. While a civil contempt finding under § 105(a) may not be appropriate in these circumstances, it does not follow that the Court lacks the ability to adequately and equitably resolve this situation.
The Court is inclined to CONTINUE the hearing for approximately thirty days to allow Debtors to file a supplemental brief addressing why they should not be sanctioned pursuant to the Court’s inherent sanctioning authority. No further briefing from Resnick is requested.
APPEARANCES REQUIRED.
Debtor(s):
Brad Stoddard Represented By Matthew D Resnik David Brian Lally
Joint Debtor(s):
Deborah Ann Stoddard Represented By Matthew D Resnik David Brian Lally
11:00 AM
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
2:00 PM
Adv#: 6:17-01028 Frealy, Chapter 7 Trustee v. Tanaka et al
From: 4/5/17, 6/7/17, 8/2/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sheri Tanaka Christopher Represented By Brian J Soo-Hoo
Defendant(s):
Ronald Howard Tanaka Represented By David L Prince
Carolyn Naomi Tanaka Represented By Phillips S Barry
Ryan Satoshi Tanaka Represented By David L Prince
Leora Linda Tanaka Represented By Phillips S Barry
2:00 PM
Estate of Yaeko Sato, a California Represented By
David L Prince
Plaintiff(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monserrat Morales
Trustee(s):
Todd A. Frealy (TR) Represented By Monserrat Morales
2:00 PM
Adv#: 6:16-01219 Candee et al v. Ayoub et al
From: 11/1/16, 6/7/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Tarek El Sayed Ayoub Represented By Sherif Fathy
Defendant(s):
Tarek El Sayed Ayoub Represented By Sherif Fathy
Gabriela VIlleda Ayoub Represented By Sherif Fathy
Joint Debtor(s):
Gabriela Villeda Ayoub Represented By Sherif Fathy
Plaintiff(s):
Keith H Candee Represented By Jon H Lieberg
Original Thurber Ranch LLC Represented By Jon H Lieberg
2:00 PM
Trustee(s):
Wesley H Avery (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
(Holding Date)
From: 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17
Also #17 EH
Docket 62
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Movant(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
From: 5/14/14, 7/2/14, 12/10/14, 3/18/15, 4/22/15, 5/20/15, 7/22/15, 10/28/15, 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17
Also #16 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Trustee(s):
Steven M Speier (TR) Pro Se
12:30 PM
CASE DISMISSED 3/13/17
From: 11/30/17 EH
Docket 0
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
12:30 PM
On October 20, 2017, the Court granted the Motion for OSC and ordered
Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
12:30 PM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 47
On June 19, 2017, Gwendolyn Washington ("Debtor") filed a Chapter 13 voluntary petition. Previously, on August 1, 2012, Debtor obtained a discharge in a Chapter 7 proceeding. On July 10, 2017, Debtor filed a motion to avoid lien with "Option One Mortgage Corp serviced by Real Time Resolutions Inc." This lien predated the petition date of Debtor’s Chapter 7 case. On August 8, 2017, the Court entered an order granting the motion. Section 4b(4) of the form order states: "The claim of the junior lienholder is to be treated as an unsecured claim and is to be paid through the plan pro rata with all other unsecured claims." Section 4b(5) of the form order states:
The junior lienholder’s claim on the deed of trust, mortgage or lien shall be allowed as a non-priority general unsecured claim in the amount per the filed Proof of Claim. The junior lienholder is not required to, but may file an amended Proof of Claim listing its claim as an unsecured claim to be paid in accordance it the Debtor’s chapter 13 plan. If an amended claim is not filed, the trustee may treat any claim on the debt (secured or unsecured) filed by the junior lienholder as unsecured upon entry of this order.
On August 17, 2017, Debtor’s Chapter 13 case was confirmed. On August 29, 2017,
12:30 PM
Real Time Resolutions, Inc. ("Creditor") filed a secured claim in the amount of
$307,049.79, including arrears in the amount of $177,235.84 ("Claim 5"). On December 15, 2017, Debtor filed an objection to Claim 5. The basis for Debtor’s objection is that her personal liability on Claim 5 was discharged in a previous bankruptcy case, and the Court’s order avoiding the lien of Creditor means that the claim is no longer secured.
Claim Objection
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re
12:30 PM
Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
Summary of Analysis
The avoidance of a consensual lien in a Chapter 13 case is effectuated by a two-step process. First, the Court engages in a § 506(a) valuation, bifurcating the claim into secured and unsecured portions. Then the Court applies § 1322(b)(2). If the § 506(a) valuation results in a "secured claim[s], other than a claim secured only by a security interest in real property that is the debtor’s principal residence" or an unsecured claim, then the plan may modify the rights of the creditor under § 1322(b)(2), avoiding the lien. This results because the Supreme Court has concluded that after a § 506(a) valuation, a wholly underwater junior lien is to be treated as an unsecured claim, and unsecured claims are subject to modification under § 1322(b)(2).
If the debtor’s personal liability on the underlying debt has been discharged in a previous bankruptcy case, however, the issue is more complex. Because there is no in personam liability on the underlying debt, it could be argued that there is no unsecured claim after the § 506(a) valuation. If there is no unsecured claim, however, the debtor would be ineligible to use § 1322(b)(2) to avoid the lien. Therefore, lien avoidance is only statutorily permissible if § 506(a) is interpreted as "creating" an unsecured claim for the purposes of the Chapter 13 bankruptcy. As outlined below, this result is logically necessary, and case law, this district’s mandatory forms, and policy considerations all weigh in favor of the result.
12:30 PM
The sole basis for Debtor’s objection to Claim 5 is that Claim 5 was the subject of (1) a prior discharge and (2) a lien avoidance order. To understand the legal argument made, a brief history of lien avoidance is necessary.1
Prior to 1992, lien avoidance was available to debtors in both Chapter 7 and 13 proceedings, and for junior liens that were both wholly underwater and partially underwater. See e.g., Gaglia v. First Fed. Savs. & Loan Ass’n, 889 F.2d 1304 (3rd Cir. 1989) (Chapter 7 debtors could strip down partially underwater junior lien). In 1992, however, the Supreme Court decided Dewsnup v. Timm, 502 U.S. 410 (1992), which held Chapter 7 debtors could not strip down a partially unsecured lien to the value of the collateral. In reaching conclusion, the Supreme Court noted the definition of secured claim in 11 U.S.C. § 506(a)(1), which states as follows:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.
The Supreme Court also noted the language of 11 U.S.C. § 506(d), which states, in relevant part: "To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void." Prior to Dewsnup, courts have interpreted §
12:30 PM
506(a)(1) and § 506(d), when read in conjunction, to establish a method by which debtors could void a lien to the extent such a lien was wholly or partially unsecured. The Supreme Court, however, rejected that reading, deferring to the "pre-Code rule that liens pass through bankruptcy unaffected." Id. at 778. In rejecting such a reading, the Supreme Court foreclosed the possibility of using § 506 as an independent mechanism to avoid wholly or partially underwater liens. Nevertheless, the Eleventh Circuit continued to allow Chapter 7 debtors to strip off wholly underwater liens, noting that the Supreme Court in Dewsnup had decided on the facts of a partially underwater lien. See, e.g., In re McNeal, 735 F.3d 1263 (11th Cir. 2012).
In 2015, however, the Supreme Court returned to the issue, and rejected the Eleventh Circuit’s approach, holding that Chapter 7 debtors could not avoid wholly underwater liens through the operation of § 506. While it is not exactly clear how § 506 could be applied differently depending on whether the lien is wholly or partially unsecured, the Supreme Court concisely reasserted that "Dewsnup defined the term ‘secured claim’ in § 506(d) to mean a claim supported by a security interest in property, regardless of whether the value of that property would be sufficient to cover the claim. . . .
Dewsnup’s construction of ‘secured claim’ resolves the question presented here."
Nevertheless, Chapter 13 debtors have a different mechanism by which they can avoid liens which are partially or wholly underwater: 11 U.S.C. § 1322(b)(2), which states:
Subject to subsections (a) and (c) of this section, the plan may –
(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims
Prior to 1993, bankruptcy courts had allowed Chapter 13 debtors to use the above
12:30 PM
provision to avoid both wholly and partially underwater liens. In 1993, however, the Supreme Court decided Nobelman v. Am. Savs. Bank, 508 U.S. 324 (1993), which limited Chapter 13 debtors ability to use § 1322(b)(2) to avoid liens to only those circumstances where the junior lien was wholly underwater. Id. at 332 ("In other words, to give effect to § 506(a)’s valuation and bifurcation of secured claims through a Chapter 13 plan in the manner petitions proposed would require a modification of the rights of the holder of the security interest. Section 1322 (b)(2) prohibits such a modification where, as here, the lender’s claim is secured only by a lien on the debtor’s principal residence."). After Nobelman, Chapter 13 debtors were still permitted to use § 1322(b)(2) to avoid liens which were "secured" by their principal residence, if such lien was wholly underwater (and thus, pursuant to § 506(a)(1), not "secured"). See, e.g., In re Tanner, 217 F.3d 1357, 1359-60 (11th Cir. 2000).
An additional wrinkle, however, is present when a debtor files a "Chapter 20" case.2 A Chapter 20 case involves a debtor who received a discharge in a Chapter 7 case and subsequently (technically within four years) files a Chapter 13 case. In that circumstance:
The Chapter 7 discharge erases all dischargeable, unsecured debts. The discharge, however, only prevents creditors from collecting against the debtors personally. Any liens on secured property ride through the bankruptcy. The liens become non-recourse loans. When the debtor then files under Chapter 13 none of the unsecured debt is part of the Chapter 13 case because it has been discharged in the Chapter 7 case, but the remaining liens are claims in the Chapter 13.
In re Winitzky, 2009 WL 9139891 at *1 (Bankr. C.D. Cal. 2009) (citations omitted). There are at least two significant questions that arise when a Chapter 13 debtor attempts to avoid a wholly underwater junior lien after obtaining a Chapter 7 discharge: (1) whether avoidance of the junior lien is permissible and (2) how the holder of the junior lien should be treated during the pendency of the Chapter 13 plan.
12:30 PM
Furthermore, there is an additional important question here: how much weight should the Court give the language of the lien avoidance motion and the subsequent order granting the motion.
The two preliminary questions identified above are legally complex – although a brief description is adequate to reveal the issues. Under the Nobelman lien avoidance procedure, a debtor first seeks a valuation under § 506(a)(1). Pursuant to § 506(a)(1), the claim is secured "to the extent of the value of such creditor’s interest in the estate’s interest in such property," and is an "unsecured claim to the extent that the value of such creditor’s interest or the amount so subject setoff is less than the amount of such allowed claim."
Here, because the entire claim is underwater, the application of § 506(a)(1) leads to a conclusion that the amount of the secured claim is zero. Pursuant to § 506(a)(1), the remainder of the claim is unsecured. The issue, however, is whether § 506(a)(1) presupposes that in personam liability exists on the claim in the first place. If § 506(a)
(1) does not implicitly contain such a presumption, then the plain language of the statute reads that any part of the claim determined not to be secured is automatically unsecured. In effect, a Chapter 20 debtor would have a choice regarding wholly underwater junior liens: treat the claim as either wholly secured or wholly unsecured.
If § 506(a)(1) does implicitly contain an assumption that, for an unsecured claim to remain, in personam liability must have existed on the claim in the first place, a different problem arises. As noted above, section 1322(b)(2) allows Chapter 13 debtors to "modify the rights of holders of secured claims, other than a claim secured only by a secured interest in real property that is the debtor’s principal residence, or of holders of unsecured claims." And Nobleman requires a two-step, sequential process for lien avoidance of wholly underwater junior liens by Chapter 13 debtors: (1) the application of § 506(a)(1), then (2) the operation of § 1322(b)(2). In order for § 1322(b)(2) to be applicable, however, and thus lien avoidance possible, the § 506(a)
valuation must reach one of two results: (1) a secured claim, other than a claim
12:30 PM
secured by real property that is the debtor’s principal residence; or (2) an unsecured claim. Clearly, if Claim 5 is secured, it is only secured by Debtor’s principal residence. Therefore, the only way § 1322(b)(2) can be applied is if the operation of § 506(a)(1) results in an unsecured claim. The result is logically unambiguous, and simply unavoidable.
The Court’s form motion and order, as well as case law, implicitly and explicitly recognize this dilemma for debtors. The lien avoidance motion filed by Debtor included the following request: "Respondent’s claim on the junior position lien shall be allowed as a nonpriority general unsecured claim in the amount per the filed Proof of Claim." [Dkt. No. 21 at 3(d)(3)]. And, as noted in the introduction section, the Court’s order granting the motion contains the following: "The claim of the junior lienholder is to be treated as an unsecured claim and is to be paid through the plan pro rata with all other unsecured claims." [Dkt. No. 30 at 4(b)(4)].3
The case law on this narrow issue (if lien stripping is allowed in a Chapter 20, how should the claim be treated during the plan) is not extensive. Multiple bankruptcy courts in California, however, have recognized the consequences noted above. The first opinion nationally to address the issue appears to have come from this district. See In re Akram, 239 B.R. 371, 377 (Bankr. C.D. Cal. 2001) ("However, neither Lam nor the cases from other Circuits addressed or allowed the result moved for here: that a Lam-stripped claim should be valued, for chapter 13 plan purposes, not only as a secured claim of zero, but also as a general unsecured claim of zero, where the debtor previously received a chapter 7 discharge. In fact, neither movant, nor this Court, found any reported case authorizing the result here moved for, or even ruling on this ‘Chapter 20’ twist to Lam motions."). The holding of that case was: "the ‘Lam- stripping" of these secured claims in the chapter 13 case resulted in valuing the secured claims at zero secured, for chapter 13 plan purposes, and turned the full amount owed to each creditor (pursuant to that creditor’s Note) into a general unsecured claim, for chapter 13 plan purposes." Id. at 378.
12:30 PM
The reasoning of Akram does not appear to be universally accepted, however, it has been cited approvingly by the BAP and is the majority position on the issue. See In re Eaton, 2006 WL 6810924 at *6 (B.A.P. 9th Cir. 2006); In re Gounder, 266 B.R. 879, 880 (Bankr. E.D. Cal. 2001) ("Given that the lien survived the chapter 7 discharge, if a chapter 13 petition is later filed and the lien is stripped pursuant to Lam, the creditor must be allowed an unsecured claim despite the earlier chapter 7 discharge."); see also In re Renz, 476 B.R. 382, 392 (Bankr. E.D.N.Y. 2012). Even Okosis, the decision commonly referred to as detailing the "fourth option" which provided a rationale to validate lien stripping in Chapter 20 cases (see footnote 4), concluded that the claim must be treated as an unsecured claim in the plan. 451 B.R. 90, 96 (Bankr. D. Nev.
2011) ("Even though the chapter 13 debtor faces no personal liability on the debt, the debtor may use Section 506(a) to determine that the claim is not supported by the value of any collateral, avoid the lien through the chapter 13 plan, and thereby treat the debt as unsecured debt.").
Ultimately, the case law and this district’s form motion and order recognize the logical necessity that only one of two things can be true: (1) lien stripping is unavailable in Chapter 20 cases; or (2) the wholly underwater junior lien becomes an unsecured claim upon lien avoidance. Quite simply, the Chapter 20 debtor cannot have its cake and eat it too. Creditor’s claim, originally secured by property of the estate, is converted to an unsecured claim against the estate after lien avoidance.
Not only do logical reasoning, case law, and this district’s practice demand the result, but the equities concur. A Chapter 13 debtor can propose plans which pay creditors three different categories of dividends: (1) 0%; (2) more than 0%, but less than 100%; or (3) 100%. In either of the first two cases, treatment of the claim as an unsecured claim would not affect the amount the debtor pays into the plan. Only in the situation where the debtor is not paying the entirety of its disposable income into the plan does the situation affect the debtor. In other words, only in those cases where the Chapter 13 debtor has the ability to pay some or the entire resulting unsecured claim would the result impact the Chapter 13 plan.4 Furthermore, there is no (other) mechanism under the bankruptcy code that would allow a debtor to avoid a lien and discharge the in
12:30 PM
personam liability without the obligation to make a good faith effort to make payment on the claim. For all the reasons outlined above, Debtor’s efforts at finding a loophole to avoid the requirement are logically incompatible with the Code.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Movant(s):
Gwendolyn Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
$2,215.00, Expenses: $. EH
Docket 34
Counsel requests fees for the following:
Opposition to a motion for relief from stay (Nissan) in which the result was an adequate protection. For this category, Counsel billed $2,120 and voluntarily reduced the amount to $1,500.
Non-opposition to a motion for relief from stay (BMW). Counsel billed $640.
Filing the fee application. Counsel billed $75.
Trustee’s objection is primarily that the billing rate of $400/hr was too high for the tasks, which could mostly be characterized as clerical or administration. Trustee proposes a $750 reduction for opposing the relief from stay and a $290 reduction for the non-opposition to the motion for relief from stay.
The Court agrees with Trustee that Counsel’s billing entries appear unreasonable. Regarding the first relief from stay, Counsel billing primarily reflects relaying the comments of Nissan to Debtor or relying the comments of Debtor to Nissan, and
12:30 PM
each e-mail is billed at $80 or $120. Furthermore, Counsel billed $320 for the opposition, which was a single paragraph long. Finally, the billing of $640 for services related to a non-opposition to BMW’s motion for relief from the
automatic stay appears excessive and unnecessary. None of the services billed for involved legal issues of any complexity.
The Court is inclined to adopt Trustee’s recommendation and allow fees in the amount of $1,175.
APPEARANCES REQUIRED.
Debtor(s):
Luis Fernando Montoya Jr. Represented By Anthony B Vigil
Movant(s):
Luis Fernando Montoya Jr. Represented By Anthony B Vigil Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
From: 12/21/17 Also #5
EH
Docket 22
The Court is inclined to DENY the motion for a variety of reasons. First, the motion identifies the hearing time as "12:30 a.m.". Second, while the proof of services states "[c]ertified mail required for service on a national bank," Debtor has served national banks by regular mail. Third, Debtor has not served the secured creditors pursuant to FED. R. BANKR. P. Rule 7004. Finally, section 3 of the motion, which identifies the liens, states that the junior lien "is not to be avoided," meaning that the motion technically does not request any relief.
APPEARANCES REQUIRED.
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Movant(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles Patricia A Mireles
12:30 PM
Trustee(s):
Patricia A Mireles Patricia A Mireles
Rod Danielson (TR) Pro Se
12:30 PM
Also #4 EH
Docket 0
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Sheryl Welsh Represented By
Hayk Grigoryan
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Beverley June Marshall Represented By Arthur H Lampel
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Martin Leland Napier Represented By Aaron Lloyd
Joint Debtor(s):
Clasina Hendrika Napier Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Alejandro Salinas Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Danny Josefy Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Oscar Alvarez Represented By Daniel B Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 156
- NONE LISTED -
Debtor(s):
Ronald Andrew Lopez Represented By David Lozano
Joint Debtor(s):
Lisa Darlene Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 150
- NONE LISTED -
Debtor(s):
Enrique Artemio Barba Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 58
- NONE LISTED -
Debtor(s):
Robert M Lopez Represented By Anthony Wilaras
Joint Debtor(s):
Ashley Lopez Represented By Anthony Wilaras
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 78
- NONE LISTED -
Debtor(s):
Scott Allan Oswald Represented By Richard Lynn Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Joe Martinez Jr. Represented By David Lozano
Joint Debtor(s):
Sandra Lynette Martinez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 38
- NONE LISTED -
Debtor(s):
Rodolfo Aguiar Represented By
James Geoffrey Beirne
Joint Debtor(s):
Irma E. Aguiar Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 57
- NONE LISTED -
Debtor(s):
Matthew Thomas Harper Represented By Norma Duenas
Joint Debtor(s):
Robin Jean Harper Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 117
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 44
- NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 37
- NONE LISTED -
Debtor(s):
Gabriel Valencia Jr. Represented By Paul Y Lee
Joint Debtor(s):
Maricela Valencia Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 37
- NONE LISTED -
Debtor(s):
Lashanda Moniek Shelton Represented By Lionel E Giron Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 20
- NONE LISTED -
Debtor(s):
Ty Nicholas Garner Sr. Represented By Richard E Chang
Joint Debtor(s):
Diane Lynn Garner Represented By Richard E Chang
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 24
- NONE LISTED -
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
From: 1/9/18 EH
Docket 56
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alberto H. Garcia Represented By Carey C Pickford
Joint Debtor(s):
Gina Caceres Represented By
Carey C Pickford
Movant(s):
Wilmington Savings Fund Society, Represented By
Jennifer C Wong
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
From: 11/28/17, 1/9/18, 1/23/18 EH
Docket 33
11/28/2017
Service: Proper Opposition: Yes
Parties to indicate whether arrears have been cured or alternatively, whether APO agreement has been reached.
APPEARANCES REQUIRED.
Debtor(s):
Gregory Dwight Vit Represented By Christopher J Langley
Movant(s):
Bank Of New York Mellon FKA The Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION AS TRUSTEE
EH
Docket 30
- NONE LISTED -
Debtor(s):
Biani Berlenda Mora Represented By Steven A Alpert
Movant(s):
U.S. Bank National Association, as Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 31
- NONE LISTED -
Debtor(s):
Yvonne L Sanchez Pro Se
Joint Debtor(s):
Oscar Sanchez Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: LIWEI HU
EH
Docket 29
- NONE LISTED -
Debtor(s):
Beverley June Marshall Represented By Arthur H Lampel
Movant(s):
Liwei Hu Represented By
Katherine Hoffman
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC. DBA GM FINANCIAL
EH
Docket 14
01/30/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jason James Popken Represented By Terrence Fantauzzi
Movant(s):
Americredit Financial Services, Inc., Represented By
Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 13
01/30/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT as to ¶12 of the prayer for relief.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Patricia Anne Goffney Pro Se
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: SAMUEL AND CLAUDIA GARCIA
EH
Docket 11
01/30/2018
Service is proper and no opposition has been filed.
The Debtors’ prior case was dismissed for failure to provide Trustee with 2016 tax returns. In the current case, Debtors have already provided 2016 returns to the Trustee. Moreover, the prior case demonstrates that the Debtors remained current for over one year. On these facts, the Debtors’ evidence of good faith is sufficient to warrant continuance of the automatic stay.
APPEARANCES REQUIRED.
Debtor(s):
Samuel Garcia Represented By
James Geoffrey Beirne
Joint Debtor(s):
Claudia Garcia Represented By
James Geoffrey Beirne
10:00 AM
Movant(s):
Samuel Garcia Represented By
James Geoffrey Beirne
Claudia Garcia Represented By
James Geoffrey Beirne James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17
Also #10 & #11 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17
Also #9 & #11 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17
Also #9 & #10 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
Also #15 & #16 EH
Docket 303
10/31/2017
The hearing on the Motion is continued to November 28, 2017, at 2:00 p.m. as a holding date.
APPEARANCES WAIVED.
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17
Also #14 & #16 EH
Docket 83
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17
Also #14 & #15 EH
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
EH
Docket 76
01/30/2018
Notice of the Motion was proper and no opposition has been filed. The Court, having reviewed the Stipulation of the parties and finding the terms to be reasonable under the circumstances, the Motion is GRANTED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
EH
Docket 85
01/30/2018
Notice of the Motion was proper and no opposition has been filed. The Court, having reviewed the Stipulation of the parties and finding the terms to be reasonable under the circumstances, the Motion is GRANTED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
2:00 PM
EH
Docket 91
On August 25, 2017 ("Petition Date"), Rick’s Patio, Inc. ("Debtor") filed a Chapter 11 voluntary petition. In its chapter 11 petition, the Debtor designated itself as a small business debtor as defined in 11 U.S.C. § 101(51D).
The Debtor filed its Chapter 11 Plan ("Plan") and Disclosure Statement ("DS") on December 26, 2017.
On December 28, 2017, the Debtor filed its Motion for Extension of Time to have Plan of Reorganization Confirmed ("Motion"). Service was proper and no opposition has been filed.
For a small business case, the plan and disclosure statement must be filed within 300
2:00 PM
days after the order for relief in a small business case. 11 U.S.C. § 1121(e)(2). Based on the Petition Date of the instant case, the statutory deadline for the Debtor’s filing of a plan and disclosure statement in this case is June 21, 2018.
Separately, the court shall confirm a plan that complies with the applicable provisions of this title and that is filed in accordance with section 1121(e) not later than 45 days after the plan is filed unless the time for confirmation is extended in accordance with section 1121(e)(3). 11 U.S.C. § 1129(e).
Here, the Debtor filed its Chapter 11 Plan ("Plan") and Disclosure Statement ("DS") on December 26, 2017. Based on the filing date, the deadline to confirm the Debtor’s plan and disclosure statement is February 9, 2018.
The Debtor now moves for an extension of the 45-day period to May 15, 2018. In order to allow for a two-step process which first allows a hearing on approval of the Debtor’s disclosure statement prior to a final hearing on confirmation, the Debtor must seek this extension. Currently, the Debtor’s Motion for approval of Chapter 11 disclosure statement is set for hearing on February 13, 2018.
Based on the foregoing facts, and in order to permit the Debtor to obtain approval of its Plan and DS with adequate notice to creditors, the Court finds the requested extension is warranted.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
2:00 PM
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
EH
Docket 82
- NONE LISTED -
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
11:00 AM
E. Smith and Amy Eskin in Support EH
Docket 30
On July 21, 2011, John & Carolyn Vega ("Debtors") filed a Chapter 7 voluntary petition. On November 2, 2011, Debtors received a discharge and five days later the case was closed.
On March 1, 2017, UST filed a motion to reopen the case to investigate and administer litigation settlement proceeds. On December 12, 2017, the Chapter 7 trustee filed two motions to approve compromise. The first motion, between the estate and the debtors and primarily relating to the amount of Debtors’ exemption in the proceeds, was granted on January 5, 2018. The second motion was set for hearing and is under consideration now.
Pursuant to the instant compromise motion the Trustee requests: (1) approval of the
11:00 AM
compromise of the products liability action; (2) authorization to employ Audet & Partners LLP and Levin Simes LLP as co-special counsel and payment of their compensation; and (3) related relief, including approval of the settlement payment disbursements. No opposition to the instant compromise motion has been filed.
FED. R. BANKR. P. Rule 9019(a) states: "On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct." The Court may grant approval if it determines that the compromise is "fair and equitable." See In re Berkeley Delaware Court, LLC, 834 F.3d 1036, 1039 (9th Cir. 2016). In determining whether the compromise is fair and equitable, the Court applies a four-factor test. See In re DiCostanzo, 399 Fed. Appx. 307, 308 (9th Cir. 2010). The test was originally outlined in In re A & C Props., and provides for consideration of
(a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it;
(d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
784 F.2d 1377, 1381 (9th Cir. 1986) (quotation omitted). "The bankruptcy court has great latitude in approving compromise agreements." In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988). Typically, "a compromise should be approved unless it falls below the lowest point in the range of reasonableness." In re Art & Architecture Books of the 21st Century, 2016 WL 1118742 at *25 (Bankr. C.D. Cal. 2016) (quotation omitted).
The proposed settlement here, however, presents a unique situation. The proposed settlement represents an "aggregate settlement" negotiated in the context of, presumably, state or federal district court litigation. The proposed settlement has not been disclosed to the Court on the basis that it contains a confidentiality provision. The Court will not approve settlement terms without the opportunity to review those terms. Furthermore, Trustee motions lacks detail in its description of the situation.
11:00 AM
The nature, extent and value of Debtor’s claim are completely unknown to this Court. The factual situation giving rise to Debtor’s claim is unclear, and the Court lacks any ability to estimate the value of the claim. Furthermore, as a result of the absence of information, the Court lacks the information necessary to determine the reasonableness of the requested attorney’s fees.
The Bankruptcy Code demonstrates a preference for public access to the proceedings. See 11 U.S.C. § 107 (2010). There are procedures by which certain documents, including settlements, can be classified as confidential. See, e.g., In re Oldco M Corp., 466 B.R. 234 (Bankr. S.D.N.Y. 2012); In re Hemple, 295 B.R. 200 (Bankr. D. Vt.
2003). In order for the Court to apply the legal standards of 11 U.S.C. § 107, the Court must be given an opportunity to review the material and make a determination regarding whether the matter is entitled to confidentiality. The Court will not, however, approve a settlement and classify it as confidential without knowledge of the terms of the settlement.
The Court is inclined to DENY the motion or CONTINUE the matter for supplemental evidence and analysis.
APPEARANCES REQUIRED.
Debtor(s):
John Vega Represented By
Jenny L Doling
Joint Debtor(s):
Carolyn Vega Represented By Jenny L Doling
11:00 AM
Movant(s):
Lynda T. Bui (TR) Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 52
On January 30, 2017, Hiep Huu Phan ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 3073 Coventry St., Corona, CA 92879 (the "Property"). On May 4, 2017, the Court approved Trustee’s application to employ Pagter & Misty Perry Isaacson as counsel. On June 26, 2017, the Court approved Trustee’s application to employ Richard Halderman Jr. as realtor.
On November 10, 2017, Trustee filed a motion for sale of property of the estate under Section 363(b). On November 22, 2017, Debtor’s non-filing spouse, Man Thi Nguyen ("Nguyen") filed her opposition. Prior to the hearing on December 6, 2017, the Court posted a tentative ruling indicating that it intended to deny the motion for failure to comply with §363(h). At the hearing, the Trustee withdrew the motion.
On January 9, 2018, the Trustee filed a new motion for sale of property of the estate. On January 16, 2018, Nguyen filed her opposition.
11:00 AM
The previous tentative ruling of this Court stated that in order for Trustee to sell the Property free of the non-filing spouse’s joint tenancy interest, Trustee must demonstrate compliance with § 363(h). In the instant motion, Trustee has added a new sub-section indicating that while the Property is held by Debtor and Nguyen as joint tenants, Trustee believes the Property is really community property. In support of Trustee’s characterization, Trustee states: "Notwithstanding the fact that the Property is held by Debtor and Nguyen as joint tenants, California law provides that the community property presumption applies to property acquired during a marriage unless it is (1) traceable to a separate property source; (2) acquired by gift or bequest; or (3) earned or accumulated while the spouses are living separate and apart."
The Court agrees with Trustee that if the community property presumption is applicable, then no evidence has been presented to the Court to rebut the presumption. Trustee, however, has not provided any evidence or information to support his assertion that the community property presumption is applicable. Specifically, the Court has no evidence regarding when the Property was acquired or when Debtor and Nguyen were married. In the absence of any evidence establishing that the community property presumption is applicable, the Court concludes that Trustee has still failed to comply with § 363(h).
The Court is inclined to DENY the motion or CONTINUE the matter for supplemental evidence and analysis.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Hiep Huu Phan Represented By Toby T Tran
Movant(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
11:00 AM
From: 1/10/18 EH
Docket 146
As a preliminary matter, the Court notes that Local Rule 2016-(1)(a)(2)(A) imposes certain notice requirements when more than one professional is employed. Here, in addition to Applicant, the Court approved the employment application of Trustee’s counsel, Best Best & Krieger, on December 1, 2017. Nevertheless, Applicant did not comply with the more stringent notice requirements applicable to interim fee applications when multiple professionals are employed.
Furthermore, the Court notes that the current status of this fee application is somewhat unclear. Applicant and Trustee filed a stipulation regarding the fee application on December 29, 2017, which was approved by the Court on January 4, 2018. The stipulation states the following:
The Application shall be treated as an interim application only at this time;
PCHS [Applicant] shall seek final allowance and payment of compensation and reimbursement of expenses at the conclusion of the case; and
PCHS [Applicant] shall not be required to re-file the Application with the Court to request final allowance and payment of compensation and reimbursement of expenses. At the conclusion of the case, PCHS shall file a
11:00 AM
declaration requesting that the Application be treated as a final application.
Pursuant to the above stipulation, it appears that the Court is only being asked to approve the instant application and allow fees on an interim basis, and the Applicant does not appear to be seeking payment until the conclusion of the case. In other words, the instant application is only seeking temporary approval of fees, with final approval and payment to occur at a later date.
In the Court’s order approving the stipulation, the Court vacated the hearing, originally set for January 10, 2018. Four days later, however, the Court entered a second order continuing the hearing to January 31, 2018.
Regarding the merits, 11 U.S.C. § 330(a)(3) (2005) provides factors to be considered in determining the reasonableness of requested compensation. Here, the Court is especially concerned with § 330(a)(3)(C): "whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered."
The Court’s first concern relates to the conversion motion. The Central District of California has a mandatory form motion to be used when converting cases from Chapter 11 to Chapter 7 (F 1017-1.1.Motion.Debtor.Convert). Debtor did not use the mandatory motion, however, instead electing to draft its own motion under an inappropriate legal provision, § 1112(b). As reflected in the Court’s tentative ruling on September 19, 2017, the Court disregarded Debtor’s choice to invoke an inappropriate legal provision, simply noting that under § 1112(a) Debtor was entitled to convert the case as of right. Furthermore, under Local Rule 1017-1(a) (3), there was no need to set the matter for hearing. Ultimately, Debtor could have quickly filled out the form mandatory form motion and set the matter on negative notice. The decision to ignore the procedure outlined in the Local Rules resulted in excessive billing. The Court is inclined to disallow the 3.3 hours (at $525/hr) that appear to be directly related to the filing and preparation of the conversion motion, resulting in a reduction of $1,732.50.
The Court’s second concern relates to Applicant’s first fee application hearing. Applicant is not entitled to bill for defending its fee application. There appear to be 1.7 hours (at $525/hr) billed for review and preparation of defense of
11:00 AM
Applicant’s first fee application. The Court is inclined to disallow this time, resulting in a reduction of $892.50. Furthermore, the Court notes that the only substantive discussion which occurred at the September 19th hearing concerned Applicant’s fee application. While the Court did hold a hearing on Applicant’s conversion motion, such a hearing was unnecessary and would not have occurred had Applicant abided by the Local Rules. Therefore, the Court is inclined to disallow the 4.8 hours (at $525/hr) of travel time incurred by Applicant in connection with this hearing, resulting in a reduction of $2,520.
Finally, the Court is also concerned with the work that occurred after Applicant became aware that Debtor would convert to Chapter 7, but before such conversion occurred. Specifically, the Court notes that Applicant intentionally delayed conversion to Chapter 7 by approximately two months, apparently in an attempt to work out a sale of certain property prior to conversion. Such a sale, however, did not occur and Applicant never filed a sale motion. As a result, the Court will disallow the 1.3 hours (at $525/hr) billed for preparation of the sale motion, which appears to have been unnecessarily premature, resulting in a reduction of $682.50
The sum of the above reductions is $5,827.50. The Court is inclined to allow fees in the reduced amount of $13,672.50 and allow expenses in the full amount of
$115.27.
The Court is inclined to allow fees in the reduced amount of $13,674.50, and disallow fees in excess of that amount without prejudice, and allow expenses in the full amount of $115.27.
APPEARANCES REQUIRED, or Applicant may not appear and will be deemed to submit to the tentative.
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
11:00 AM
Movant(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Best Best & Krieger Caroline Djang
11:00 AM
Docket 74
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
11:00 AM
EH
Docket 24
On September 22, 2017, Oswaldo Canton & Alex Sanchez ("Debtors") filed a Chapter 7 voluntary petition. The meeting of creditors was originally scheduled for October 26, 2017. On December 1, 2017, Daniel’s Jewelers ("Creditor") filed a motion for 2004 examination, and the motion was granted on December 11, 2017.
On December 20, 2017, Debtors and Creditor filed a stipulation to extend time for filing complaint to determine debt to be non-dischargeable and to extend the time for filing reaffirmation agreements. The order lodged with the Court contained the following two rulings:
IT IS HEREBY ORDERED that the time for Merchants Acquisition Group LLC to file a complaint under any subsection of 11 U.S.C. § 523 and for entering into and filing reaffirmation agreement with the above-named Debtor(s), is extended to an including the date of 03/05/2018.
IT IS FURTHER ORDERED that any discharge of the Debtor(s) in this case
11:00 AM
shall not apply to this creditor until after the expiration of the above extension
of time, and if said complaint is filed, until after a final order disposing of said complaint is entered.
On January 5, 2018, the stipulation was set for hearing.
Regarding the first component of the proposed order, the extension of the reaffirmation deadline and the deadline to file a non-dischargeability complaint, the Court finds the requests to be legally permissible and sufficient grounds established. Here, the deadline to file a reaffirmation agreement and a non-dischargeability complaint was December 26, 2017. FED. R. BANKR. P. Rule 4008(a) allows the Court to extend the reaffirmation deadline in its discretion. FED. R. BANKR. P. Rule 4007(c) allows the Court to extend the deadline to file a non-dischargeability complaint for cause. For the reasons set forth in the stipulations, and in light of the fact that Debtors have agreed to the extensions, the Court finds it appropriate to extend both deadlines to March 5, 2018.
The second component of the request, however, cannot be approved. It appears Creditor has requested that its claim be temporarily (and possibly indefinitely) classified as non-dischargeable. There does not appear to be any legal basis or precedent for such a request. A creditor bears the burden of establishing that its claim falls within the exceptions to discharge outlined in 11 U.S.C. § 523. And the Bankruptcy Code expressly disfavors and restricts a debtor’s ability to waive the discharge of particular debts. For example, § 524(a) explicitly states that a discharge is effective "whether or not discharge of such debt is waived." Additionally, § 524(c), governing reaffirmation agreements, imposes strict requirements on when a debt can be exempted from discharge. If a creditor and debtor could simply stipulate that a discharge not apply to a particular debt, then the entire concept of reaffirmation agreement would be unnecessary. Therefore, this second component of the proposed order will not be approved.
11:00 AM
The Court is inclined to GRANT the motion to the extent it seeks an extension of the deadline to file a reaffirmation agreement and a non-dischargeability complaint and DENY the motion to the extent it seeks to classify a debt as non-dischargeable by stipulation.
APPEARANCES REQUIRED.
Debtor(s):
Oswaldo Yanez Canton Represented By Frank X Ruggier
Joint Debtor(s):
Alex Sanchez Represented By Frank X Ruggier
Movant(s):
Merchants Acquisition Group, LLC Represented By
Richard W Snyder
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
2:00 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:16-01219 Candee et al v. Ayoub et al
From: 11/1/16, 6/7/17, 1/24/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Tarek El Sayed Ayoub Represented By Sherif Fathy
Defendant(s):
Tarek El Sayed Ayoub Represented By Sherif Fathy
Gabriela VIlleda Ayoub Represented By Sherif Fathy
Joint Debtor(s):
Gabriela Villeda Ayoub Represented By Sherif Fathy
Plaintiff(s):
Keith H Candee Represented By Jon H Lieberg
Original Thurber Ranch LLC Represented By Jon H Lieberg
2:00 PM
Trustee(s):
Wesley H Avery (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:16-01310 Swift Financial Corporation d.b.a. Swift Capital v. Castillo
From: 5/3/17, 9/13/17, 11/8/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Francisco Javier Castillo Represented By Joseph M Tosti
Defendant(s):
Francisco Javier Castillo Pro Se
Plaintiff(s):
Swift Financial Corporation d.b.a. Represented By
Lazaro E Fernandez
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:17-01028 Frealy, Chapter 7 Trustee v. Tanaka et al
From: 4/5/17, 6/7/17, 8/2/17, 1/24/18 EH
Docket 1
1/31/2018
The status conference will be continued to March 21, 2018 at 2:00 p.m.
APPEARANCES WAIVED.
Debtor(s):
Sheri Tanaka Christopher Represented By Brian J Soo-Hoo
Defendant(s):
Ronald Howard Tanaka Represented By David L Prince
Carolyn Naomi Tanaka Represented By Phillips S Barry
2:00 PM
Ryan Satoshi Tanaka Represented By David L Prince
Leora Linda Tanaka Represented By Phillips S Barry
Estate of Yaeko Sato, a California Represented By
David L Prince
Plaintiff(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monserrat Morales
Trustee(s):
Todd A. Frealy (TR) Represented By Monserrat Morales
2:00 PM
Adv#: 6:16-01128 Frealy v. Trotochau et al
(Stip Judgment with Robin Trotochau 12/4/17)
From: 7/20/16, 9/28/16, 1/11/17, 3/8/17, 6/7/17, 8/23/17, 9/27/17
EH
Docket 1
1/31/2018
The status conference will be continued to March 21, 2018 at 2:00 p.m.
APPEARANCES WAIVED.
Debtor(s):
M. A. Tabor Represented By
Judith Runyon
Defendant(s):
Robin Sherrie Trotochau Pro Se
Pacific Mortgage Exchange, Inc. Represented By
Leib M Lerner
2:00 PM
Plaintiff(s):
Todd A. Frealy Represented By Anthony A Friedman
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman Lindsey L Smith
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
Also #12 EH
Docket 36
On June 23, 2016, Revere Financial Corporation ("Plaintiff") filed a complaint against Don Burns ("Defendant"), and, on June 30, 2016, the complaint was amended. After Defendant failed to answer or otherwise respond to the complaint, the clerk entered default against Defendant on November 16, 2016.
On April 21, 2017, Plaintiff filed a motion for default judgment. On May 4, 2017, Defendant filed a motion to set aside default and an answer. On May 24, 2017, Plaintiff filed its opposition to the motion to set aside default. At a hearing on June 7, 2017, the Court instructed the parties that it would conditionally grant the motion to set aside default upon payment of reasonable costs, and requested further briefing regarding Plaintiff’s costs incurred as a result of Defendant’s delay. At a continued hearing on July 12, 2017, after the Court posted a tentative ruling reducing the fees requested by Plaintiff, the Court continued the motion to set aside default to allow further briefing from parties. On September 13, 2017, after further briefing, the Court entered an order setting aside default conditioned on payment by Defendant to
2:00 PM
Plaintiff in the amount of $4,593.75, to be paid within thirty days.
The instant motion to dismiss, in addition to a status conference, came up for hearing on November 8, 2017. At the time of the hearing, however, Defendant had failed to file a declaration establishing that he had paid the ordered fees and, as a result, Defendant remained in default. The day after the hearing, Defendant filed a declaration establishing payment of the $4,593.75 to Plaintiff. That same day, the Court sanctioned Defendant an additional $500 for failing to timely comply with the Court’s order. The Court notes that it is unclear whether Defendant has complied with the sanctions order.
On June 30, 2017, while still in default, Defendant filed the instant motion to dismiss. On August 9, 2017, Plaintiff filed their opposition to the motion to dismiss. On August 16, 2017, Defendant filed a reply.
Defendant’s motion to dismiss argues that the amended complaint does not contain sufficient facts to satisfy the pleading standard of FED. R. CIV. P. Rule 8, and the heightened pleading standard of FED. R. CIV. P. Rule 9(b). Defendant further argues that the fourth through tenth claims depend on liability in the first three claims, and should be dismissed if the first three claims are dismissed. Finally, Defendant argues that amending the complaint is futile.
FED. R. CIV. P. Rule 9(b) states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally." This heightened pleading standard is commonly interpreted as requiring the "who, what, where, when, and how." See, e.g., U.S. ex rel. Costner v. U.S., 317 F.3d 883, 888 (8th Cir. 2003).
2:00 PM
Here, the amended complaint contains detailed allegations documenting the date and amount of each transfer Plaintiff wishes to avoid. Specifically, in ¶ 19 Plaintiff references the details of the "Patent Assignment" and the "Royalty Assignment," and in the exhibit to the complaint the Plaintiff references the date, payor, and amount of an additional nineteen transactions. Because Defendant has merely recited the applicable legal standard without applying it the complaint at issue, it is unclear in what respect Defendant believes the complaint to be deficient. Nevertheless, the Court concludes that the first amended complaint sufficiently apprises Defendant of the details of Plaintiff’s complaint to satisfy the FED. R. CIV. P. Rule 8 pleading standard, and pleads fraud with sufficient particularity to satisfy the FED. R. CIV. P. Rule 9 pleading standard.
Because the Court has concluded that the first three claims for relief contain sufficient factual allegations, Defendant’s contingent request for dismissal of claims four through ten is denied.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
2:00 PM
On June 23, 2016, Revere Financial Corporation ("Revere") filed a complaint against Don Burns ("Burns"), and, on June 30, 2016, the complaint was amended. After Burns failed to answer or otherwise respond to the complaint, the clerk entered default against Burns on November 16, 2016.
On April 21, 2017, Revere filed a motion for default judgment. On May 4, 2017, Burns filed a motion to set aside default and an answer. On May 24, 2017, Revere filed its opposition to the motion to set aside default. At a hearing on June 7, 2017, the Court instructed the parties that it would conditionally grant the motion to set aside default upon payment of reasonable costs, and requested further briefing regarding Revere’s costs incurred as a result of Burns’s delay. At a continued hearing on July 12, 2017, after the Court posted a tentative ruling reducing the fees requested by Revere, the Court continued the motion to set aside default to allow further briefing from parties. The fee dispute has not yet been resolve and no order has been entered related to the motion to set aside default.
On June 30, 2017, Burns filed a motion to dismiss. On August 9, 2017, Revere filed their opposition to the motion to dismiss.
Despite the fact that Burns is still in default, neither party has briefed the impact of that status on Burns’s motion to dismiss. A legal scholar previous wrote that "the defaulting party loses his standing to contest the truth of all facts that are ‘well- pleaded’ in the non-defaulting party’s complaint." Peter H. Bresnan & James P. Cornelio, Relief from Default Judgments Under Rule 60(b) – A Study of Federal Case Law, 49 FORDHAM L. REV. 956, 959-60 (1981) (collecting cases); see also Thomson v. Wooster, 114 U.S. 104, 112-14 (1885) ("From the authorities cited, and the express language of our own rules in equity, it seems clear that the defendants, after the entry
2:00 PM
of the decree pro confesso, and while it stood unrevoked, were absolutely barred and precluded from alleging anything in derogation of, or in opposition to, the said decree, and that they are equally barred, and precluded from questioning its correctness here on appeal, unless on the face of the bill it appears manifest that it was erroneous and improperly granted."). Burns’s motion to dismiss raises a legal argument, however, not a factual argument.
Courts appear willing to simultaneously grant motions to set aside default and dismiss the case. See, e.g., Mineo Yoshida v. Daikokuya Co., Ltd., 2008 WL 11338257 (C.D. Cal. 2007). Other courts have been more specific with regard to the order in which the motion to set aside default and the motion to dismiss must be considered. See Everest Indem. Ins. Co. v. Demarco, 2013 WL 12136578 at *2 (C.D. Cal. 2013) ("Before the Court can consider their motion to dismiss, the default must be set aside pursuant to FED. R. CIV. P. Rule 55(c)."). Where, as is the case here, the Court has merely orally indicated that it will set aside default upon the occurrence of a condition which has not yet been defined, and may or may not come to pass, the Court considers it improper to rule on the motion to dismiss. Therefore, the Court will continue the matter for Burns to obtain a setting aside of the default.
The Court is inclined to CONTINUE the matter for fee payment, if any, to be made, and an order to be entered setting aside the default.
APPEARANCES REQUIRED.
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
2:00 PM
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Don Cameron Burns Represented By Don C Burns Don C Burns Don C Burns Don C Burns Don C Burns Don C Burns Don C Burns Don C Burns Don C Burns
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
From: 8/31/16, 11/2/16, 1/11/17, 3/8/17, 6/7/17, 8/2/17, 8/23/17, 11/8/17
Also #11 EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar
2:00 PM
Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01191 Frealy v. Cebadas et al
Also #14 EH
Docket 24
On October 15, 2015, Martha Loreno Soto Jimenez ("Debtor") and her (ex)husband acquired certain real property located at 1475 Capri Ln., San Jacinto, CA 92583 (the "Property"). On July 20, 2016, a divorce judgment provided that the Property was the separate property of Debtor. On June 22, 2017, Debtor and her (ex)husband transferred the Property to their sons via grant deed. The grant deed states: "This is a bonafide gift and the grantor received nothing in return.
On July 27, 2017, Debtor filed a Chapter 7 voluntary petition. On September 8, 2017, Trustee filed a complaint for: (1) declaratory relief; (2) avoidance of voidable transfer;
recovery of avoided transfer; (4) sale of interest of co-owner in property of the estate; and (5) turnover of property against Armando Cebadas (Debtor’s husband or ex-husband), Jose Alfredo Cebadas Soto (Debtor’s son), Victor Armando Cebadas Soto (Debtor’s son), and Debtor (collectively, "Defendants"). On October 17, 2017, the clerk entered default against Defendants. On January 10, 2018, Trustee filed a
2:00 PM
motion for default judgment.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing
2:00 PM
a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Trustee served Defendants at the Property. It is unclear, however, whether the property is the "dwelling house or usual place of abode" for Debtor’s (ex)husband and two children. The Court requires additional evidence to establish that the Defendants (other than Debtor) were served in accordance with the requirements of FED. R. BANKR. P. Rule 7004(b)(1).
Merits of Plaintiff’s claim
Assuming Trustee establishing that service was proper, the Court will address the merits of the motion. Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes nine causes of action: (1) declaratory relief; (2) five separate causes of action for avoidance of voidable transfer; (3) recovery of avoided transfer; (4) sale of interest of co-owner in property of the estate; and (5) turnover of property
Regarding the first cause of action, declaratory relief, the complaint requests a determination that the Property is the community property of Debtor and her ex- husband. Trustee alleges in the complaint that Debtor and Armando acquired their interest in the Property prior to the petition date, while they were married. While this
2:00 PM
appears true, Trustee has provided additional information in the motion for default judgment, namely a divorce judgment, which indicates that the property is actually the separate property of Debtor. This creates a dilemma because, upon default, the factual allegations of the complaint are to be taken as true. Furthermore, Trustee cannot ask for relief (i.e. a declaration that the Property is Debtor’s separate property) which goes beyond the scope of the relief requested in the complaint. Therefore, the Court cannot grant Trustee’s request for a determination that the Property is separate property. The Court also cannot grant Trustee’s request for a determination that the Property is community property because Trustee has submitted evidence establishing that the Property is in fact not community property.
Regarding the second through sixth causes of action, avoidance of voidable transfer, Trustee has cited three Code provisions authorizing avoidance of the transfer of the Property to Debtor’s sons: §544(b) (with reference to CAL. CIV. CODE § 3439.04(a) (1)&(2), §3439.05, and § 3439.07), § 548(a)(1)(A), and § 548(a)(1)(B). The first
cause of action for avoidable transfer cites 11 U.S.C. §§ 544(b) and 550(a) and CAL. CODE CIV. P. §§ 3439.04(a)(1) and 3439.07. Section 544(b) states that a trustee may avoid a transfer of an interest of the debtor that is voidable under applicable law. CAL. CODE CIV. P. § 3439.04(a)(1) states that a debtor’s transfer of an interest in property is voidable if the transfer was made "[w]ith actual intent to hinder, delay, or defraud" creditors. Trustee’s complaint sufficiently alleges that the transfer was made with actual intent to hinder, delay, or defraud creditors. 11 U.S.C. § 548(a)(1)(A) is materially identical to CAL. CODE CIV. P. § 3439.04(a)(1) so Trustee has also satisfied the former.
CAL. CODE CIV. P. § 3439.04(a)(2) provides that a transfer is voidable if the debtor does not receive reasonable equivalent value and either (a) was engaged or about to engage in a transaction for which its remaining assets were unreasonable small or (b) or believed or reasonably should have believed it would incur debts beyond the debtor’s ability to pay. While the grant deed indicates it was a bona fide gift, and thus no reasonably equivalent value was received, Trustee has not provided sufficient factual allegations to satisfy the latter component of the test. Specifically, there is no factual allegation which supports the contention that Debtor’s assets were unreasonably small
2:00 PM
for future transactions or that Debtor was about to incur debts beyond the debtor’s ability to pay. 11 U.S.C. § 548(a)(1)(B) is materially identical to CAL. CODE CIV. P. § 3439.04(a)(2) so the analysis is the same regarding the former.
CAL. CODE CIV. P. § 3439.05 provides that a transfer is voidable as to a creditor whose claim arose before the transfer if the debtor did not receive reasonably equivalent value and the debtor was or became insolvent as a result of the transfer. Trustee’s complaint sufficiently alleges that Debtor did not receive reasonably equivalent value, that Debtor was insolvent as a result of the transfer and that there is a creditor whose claim arose before the transfer.
Regarding recovery of the avoidable transfer, 11 U.S.C. § 550 provides that transfers avoided under §§ 544 and 548 are recoverable from the initial transferee. Trustee’s complaint sufficiently alleges that Debtor’s two sons, named defendants, are the initial transferees, and, therefore Trustee has satisfied § 550.
Regarding Trustee’s request to sell an interest of a co-owner of property under § 363(h), the Court is inclined to conclude that Trustee’s complaint sufficiently establishes the four statutory requirements.
Finally, regarding Trustee’s request for turnover, Section 542(a) provides for turnover of property of the estate that is of consequential value. Here, Trustee has sufficiently satisfied the requirements of § 542(a) by demonstrating that the Property is property of the estate and that the Property is not of inconsequential value.
Amount of Damages
2:00 PM
Here, Trustee is not requesting any damages, and, therefore, no evidence is required establishing the amount of damages.
Conditioned on Trustee establishing that service on Defendants was proper, the Court is inclined to issue judgment in favor of the Trustee on the second, fourth, fifth, seventh, eight, and ninth claims for relief. The motion for default judgment is denied without prejudice as to the third and sixth claims for relief. The motion for default judgment is denied with prejudice as to the first claim for relief, although to the extent necessary Trustee is free to amend the complaint as to the first claim for relief.
APPEARANCES REQUIRED.
Debtor(s):
Martha Lorena Soto Jimenez Represented By Marlin Branstetter
Defendant(s):
Armando Cebadas Pro Se
Jose Alfredo Cebadas Soto Pro Se
Victor Armando Cebadas Soto Pro Se
Martha Lorena Soto Jimenez Pro Se
Movant(s):
Todd A. Frealy Represented By Carmela Pagay
2:00 PM
Plaintiff(s):
Todd A. Frealy Represented By Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:17-01191 Frealy v. Cebadas et al
Also #13 From: 11/8/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Martha Lorena Soto Jimenez Represented By Marlin Branstetter
Defendant(s):
Armando Cebadas Pro Se
Jose Alfredo Cebadas Soto Pro Se
Victor Armando Cebadas Soto Pro Se
Martha Lorena Soto Jimenez Pro Se
2:00 PM
Plaintiff(s):
Todd A. Frealy Represented By Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
(Holding Date)
From: 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18
Also #16 EH
Docket 62
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Movant(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
From: 5/14/14, 7/2/14, 12/10/14, 3/18/15, 4/22/15, 5/20/15, 7/22/15, 10/28/15, 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18
Also #15 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Trustee(s):
Steven M Speier (TR) Pro Se
12:30 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17
EH
Docket 1
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 21
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Movant(s):
Frank Prouty Represented By
Nima S Vokshori Nima S Vokshori Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 142
Debtor(s):
Francisco Javier Medina Represented By Tamar Terzian
Joint Debtor(s):
Maria Guadalupe Medina Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 85
Debtor(s):
Agnes Smith Represented By
James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 88
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 81
Debtor(s):
William R Parker Represented By Julie J Villalobos
Joint Debtor(s):
Cheryl Parker Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 55
Debtor(s):
Miguel Vivar Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Maria Vivar Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 56
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 54
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 46
Debtor(s):
Luis Fernando Buenrostro Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 53
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 27
Debtor(s):
Andre J Booker Represented By Paul Y Lee
Joint Debtor(s):
Carrie L Booker Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 37
Debtor(s):
Lashanda Moniek Shelton Represented By Lionel E Giron Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 31
Debtor(s):
Oscar Avila Represented By
Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 43
Debtor(s):
Elizabeth Jucaban Tuason Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 28
Debtor(s):
Salvador Caridad Rodriguez Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 40
Debtor(s):
Brenda Morgan Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 1/9/18 EH
Docket 89
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Keith Labell Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 29
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from § 1301(a) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles M. Wallace Jr. Represented By Robert W Ripley
Joint Debtor(s):
Raquel A. Wallace Represented By Robert W Ripley
Movant(s):
Wells Fargo Bank, N.A./Wells Fargo Represented By
10:00 AM
Trustee(s):
Norman Harrison Armin M Kolenovic
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
From: 1/23/18 EH
Docket 27
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under § 2. DENY request under § 5 because the motion has not been served on any co-debtor as that term is used in § 1301(a).
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jesus Angel Acosta Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Teresa Acosta Represented By
10:00 AM
Movant(s):
James Geoffrey Beirne
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 20
- NONE LISTED -
Debtor(s):
William Martin Farber Represented By Steven A Alpert
Movant(s):
Wells Fargo Bank, N.A. Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL SERVICES VEHICLE TRUST
EH
Docket 77
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). DENY request for relief under § 362(d)(2) for lack of cause shown. GRANT waiver of 4001(a)(3) stay. GRANT relief from § 1301(a) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Alfredo Loera Represented By Paul Y Lee
Joint Debtor(s):
Veronica O Loera Represented By Paul Y Lee
Movant(s):
Financial Services Vehicle Trust Represented By
10:00 AM
Trustee(s):
Bret D. Allen
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
From:12/19/17 EH
Docket 34
Service is Proper Opposition: Yes
Movant to confirm cure, and parties to discuss adequate protection. APPEARANCES REQUIRED.
Debtor(s):
Elizabeth Jucaban Tuason Represented By Brad Weil
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 25
- NONE LISTED -
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth
Movant(s):
WELLS FARGO BANK, N.A. Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 34
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Martha Mata Represented By
Inez Tinoco-Vaca
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE)
EH
Docket 27
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Deborah Voorhis Harmon Represented By Douglas A Plazak
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui
10:00 AM
Brandon J Iskander
10:00 AM
MOVANT: R&U BUILDER
EH
Docket 7
Service is Okay Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Tinetta Christina Cotton Pro Se
Movant(s):
R&U Builder Represented By
William E Windham
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: CRESCO CAPITAL INC
EH
Docket 9
APPEARANCES REQUIRED.
Debtor(s):
Eri A. Doulos Represented By
Christopher J Langley
Movant(s):
Cresco Capital, Inc. Represented By James R Selth
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: GUILLERMO ZAMUDIO
EH
Docket 18
The Court is inclined to DENY the motion for improper service. The motion indicates that it is being set on regular notice, however, the matter was actually set on shortened notice. This Court’s self-calendaring procedures for setting a motion to continue the automatic stay on shortened notice require that secured creditors be served pursuant to Rule 7004, which did not occur.
APPEARANCES REQUIRED.
Debtor(s):
Guillermo Zamudio Represented By Paul Y Lee
Movant(s):
Guillermo Zamudio Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Requiring Status Report
(CASE DEFICIENT FOR CORPORATE RESOLUTION DUE 2/1/18)
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
11:00 AM
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
Docket 90
02/07/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 32,791.67 |
Trustee Expenses: | $ 532.24 |
Attorney Fees: | $29,892 |
Attorney Costs: | $529.30 |
Accountant Fees: | $3,600 |
Accountant Costs: | $325.67 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Jacinda Reis Represented By
Lazaro E Fernandez
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Represented By Toan B Chung
11:00 AM
EH
Docket 55
On November 30, 2015 ("Petition Date"), Janice Elaine Cox ("Debtor") filed her petition for chapter 7 relief. Arturo Cisneros is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the Debtor’s bankruptcy estate is certain real property located at 1059 Hugo Lane, Big Bear City, CA (the "Property"). The Property is not the Debtor’s principal residence.
On January 12, 2018, the Trustee filed his motion seeking turnover of the Property ("Motion"). Specifically, the Trustee asserts that the Debtor may be receiving rental income from her sister ("Tenant") who is residing at the Property and who is unwilling to cooperate with the Trustee’s efforts to market and sell the Property.
Under the Bankruptcy Code, a debtor has a duty to surrender property of the estate to the trustee. § 521(4). Furthermore, a trustee has the duty to "collect and reduce to money the property of the estate for which such trustee serves " § 704(1).
Finally, "any entity, other than a custodian, in possession, custody or control 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 "
Id. § 542(a).
11:00 AM
The Trustee seeks an order directing the Debtor to turn over to him (1) the
Property, (2) any rental payments received since the filing of the petition, and (3) a full accounting of rental payments received by the Debtor since the petition date.
In support of the Motion, the Trustee asserts that the Tenant has stated that she will not cooperate with the Trustee’s efforts to sell the Property.
Based on the evidence in the Trustee’s declaration, and the failure of the Debtor to file any response or opposition to the Motion, the Court is inclined to GRANT the Trustee’s request for an order (1) requiring turnover of the Property, (2) requiring that all rental payments received since the Petition Date be turned over, and
requiring an accounting of all rental payments received by the Debtor since the Petition Date. The Debtor shall have 30 days from the date of entry of the order to comply.
APPEARANCES REQUIRED.
Debtor(s):
Janice Elaine Cox Represented By Rajiv Jain
Movant(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
Trustee(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
11:00 AM
EH
Docket 16
02/07/2018
On November 28, 2017, Randall and Amber Hoover (collectively, the "Debtors") filed their petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the Debtors’ estate is a 2010 Toyota Prius (the "Vehicle").
On December 11, 2017, the Debtors filed their motion to redeem a the Vehicle, which is secured by the lien of Gateway One Lending ("Gateway"). The Debtors assert that the value of the Vehicle is no more than $6,848. The Debtors believe the debt owed on the Vehicle is a dischargeable consumer debt and that the Vehicle has either been exempted or abandoned by the estate.
Service was proper and no opposition has been filed.
The Debtors seek to redeem the Vehicle pursuant to FRBP 6008 and 11 U.S.C.
§ 722.
Redemption in Chapter 7
11:00 AM
An individual Chapter 7 debtor may redeem tangible personal property
intended primarily for personal, family or household use from a lien securing a dischargeable consumer debt, if either (1) the property is exempt under § 522 or (2) it has been abandoned under § 554. 11 U.S.C. § 722. Redemption is made by paying the lienholder the amount of its allowed claim secured by the lien. Id.
Though a chapter 7 debtor must take certain action to preserve the automatic stay when seeking to redeem personal property secured by a lien, see 11 U.S.C. §§ 362(h), 521(a)(2), & 521(a)(6), there is no deadline impacting a debtor’s substantive right to redeem (even after a discharge has been entered). In re Rodgers, 273 B.R. 186, 191 (Bankr. C.D. Ill. 2002); In re Cassar, 139 B.R. 253, 254 (Bankr. D. Colo. 1992). Rather, redemption under § 722 requires that a debtor demonstrate only the following: (1) both the property subject to the lien and the underlying debt must be consumer-related; (2) the debt secured by the lien must be dischargeable in bankruptcy; (3) the property must either be exempted under § 522 or abandoned under
§ 554; and (4) the debtor must pay the lien holder the amount of the allowed secured claim. In re Jewell, 232 B.R. 904, 906 (Bankr. E.D. Tex. 1999). If the debtor fails to satisfy any of these requirements the motion shall be denied. Id.
In support of the Motion, the Debtors have provided no evidence to support the Motion. There is no declaration submitted by the Debtors attesting to the value of the Vehicle. Moreover, Schedule C appears to indicate that the Debtors did not exempt the Vehicle under §522 (however, given that the Trustee has issued a Report of No Distribution and that no opposition or response has been filed by Gateway, the Court is inclined to find that the Trustee’s No Asset Report is sufficient to indicate abandonment under the circumstances of the instant case).
For the foregoing reasons, the tentative ruling is to CONTINUE the hearing on the Motion to February 28, 2018, at 11:00 a.m. for Debtors to provide evidence in support
11:00 AM
of the Motion.
APPEARANCES WAIVED. Debtors are directed to file and serve notice of the continuance.
Debtor(s):
Randall Lee Hoover Jr. Represented By John A Varley Lennie A Alzate
Joint Debtor(s):
Amber LaRie Hoover Represented By John A Varley Lennie A Alzate
Movant(s):
Randall Lee Hoover Jr. Represented By John A Varley Lennie A Alzate
Amber LaRie Hoover Represented By John A Varley John A Varley Lennie A Alzate Lennie A Alzate
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/20/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
12:30 PM
EH
Docket 166
On September 21, 2012, Jesse & Rocio Delgado ("Debtors") filed a Chapter 13 voluntary petition. On December 11, 2012, Debtors’ Chapter 13 plan was confirmed.
The plan has been modified four times since confirmation.
On August 29, 2017, Trustee filed a motion to dismiss for material default. On the same day, Debtors amended their Schedule D. On September 13, 2017, Debtors filed opposition to the Trustee’s motion to dismiss, stating that, pursuant to the terms of the confirmed plan, Debtors were to file a lien avoidance motion, avoiding a lien with Springleaf Financial, which would resolve Trustee’s motion to dismiss. On September 13, 2017, Debtors also filed their lien avoidance motion.
Debtors’ motion seeks to avoid a lien in amount of $3,807. The collateral for this lien is not completely clear. Debtors’ declaration states that the security is "household goods and furnishings." Exhibit C of Debtors’ motion, titled Personal Property Appraisal Form, seems to indicate that the lien is secured by two televisions, with an aggregate value of $2,500. The actual Loan Agreement references the Personal
12:30 PM
Property Appraisal Form, and it appears that the extent of the collateral is the two televisions.
On October 19, 2017, the Court denied the motion for reasons reflected on the record and in its tentative ruling posted prior to the hearing. Debtors’ counsel never lodged an order on the motion. Trustee withdrew his motion to dismiss.
On November 2, 2017, Debtors amended Schedules B & C. On November 22, 2017, Debtors amended Schedule D. On November 28, 2017, Debtors refiled their lien avoidance motion. While the secondary issues noted in the Court’s tentative ruling were addressed through the amendment of Debtors’ schedules, the main issue was not addressed. Instead, the flaw in the motion was explicitly retained in both the motion and the lodged proposed order. Furthermore, Debtors’ counsel did not update the motion’s declaration, and the declaration now contradicts the docket.
On December 12, 2017, Trustee filed a motion to dismiss the case for failure to complete the plan within its terms. On December 19, 2017, Debtors filed their opposition to the motion to dismiss.
As noted in this Court’s previous tentative ruling, 11 U.S.C. § 522(f)(1)(B)(i) states:
(f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is –
(B) a nonpossessory, nonpurchase-money security interest in any –
12:30 PM
household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household of the debtor or dependent of the debtor
And 11 U.S.C. § 522(f)(4)(A)(v) specifically states that the term "household goods," for purposes of § 522(f)(1)(B)(i), is limited to one television. Once again, Debtors’ attempt to avoid the lien with respect to multiple televisions appears to be statutorily impermissible.
The Court intends to DENY the motion and issue an OSC why attorney Sundee Teeple should not be sanctioned for filing a frivolous motion.
APPEARANCES REQUIRED.
Debtor(s):
Jesse Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Joint Debtor(s):
Rocio Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
12:30 PM
Movant(s):
Jesse Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Rocio Delgado Represented By
Dale Parham - INACTIVE - Dale Parham - INACTIVE - Dale Parham - INACTIVE - Michael Smith
Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (SA) Cohen (TR)
12:30 PM
EH
Docket 167
- NONE LISTED -
Debtor(s):
Jesse Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Joint Debtor(s):
Rocio Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (SA) Cohen (TR)
12:31 PM
From: 11/9/17, 1/11/18 EH
Docket 56
- NONE LISTED -
Debtor(s):
Mary Black-Williams Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
12:31 PM
From: 12/14/17 EH
Docket 79
- NONE LISTED -
Debtor(s):
Jacquelyn Anna Palmer Represented By Steven A Alpert
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:31 PM
Docket 101
- NONE LISTED -
Debtor(s):
Niculaie David Represented By Marjorie M Johnson
Joint Debtor(s):
Sidonia David Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:32 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17, 2/1/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
12:32 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 100
- NONE LISTED -
Debtor(s):
Roy Kenneth Scott Represented By Sunita N Sood
Joint Debtor(s):
Tashiea Scott Represented By
Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #9 & #10 EH
Docket 22
On August 29, 2017, Corinthia Williams ("Debtor") filed a Chapter 13 voluntary petition. On October 23, 2017, Debtor’s Chapter 13 plan was confirmed.
On December 6, 2017, LVNV Funding, LLC ("LVNV") filed an unsecured claim in the amount of $1,357.47 ("Claim 3"). The same day LVNV filed a second unsecured claim in the amount of $910.02 ("Claim 4"). Six days later LVNV filed a third unsecured claim in the amount of $467.21 ("Claim 5"). On January 5, 2018, Debtor filed claim objections to all three claims.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in
12:32 PM
interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
12:32 PM
11 U.S.C. § 502(b)(1) (2005) states:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 3 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identifies a last transaction date of July 16, 2007. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable.
Claim 4 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of May 6, 2002. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 4 is unenforceable.
12:32 PM
Claim 5 is based on "retail" debt. The claim’s supporting documentation suggests that the claim fits within the category established by CAL. CODE CIV. P. § 337.
Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of February 15, 2008. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 5 is unenforceable.
For the foregoing reasons, the Objection is SUSTAINED and Claims 3, 4 and 5 are DISALLOWED.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within seven days.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #8 & #10 EH
Docket 23
On August 29, 2017, Corinthia Williams ("Debtor") filed a Chapter 13 voluntary petition. On October 23, 2017, Debtor’s Chapter 13 plan was confirmed.
On December 6, 2017, LVNV Funding, LLC ("LVNV") filed an unsecured claim in the amount of $1,357.47 ("Claim 3"). The same day LVNV filed a second unsecured claim in the amount of $910.02 ("Claim 4"). Six days later LVNV filed a third unsecured claim in the amount of $467.21 ("Claim 5"). On January 5, 2018, Debtor filed claim objections to all three claims.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in
12:32 PM
interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
12:32 PM
11 U.S.C. § 502(b)(1) (2005) states:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 3 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identifies a last transaction date of July 16, 2007. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable.
Claim 4 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of May 6, 2002. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 4 is unenforceable.
12:32 PM
Claim 5 is based on "retail" debt. The claim’s supporting documentation suggests that the claim fits within the category established by CAL. CODE CIV. P. § 337.
Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of February 15, 2008. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 5 is unenforceable.
For the foregoing reasons, the Objection is SUSTAINED and Claims 3, 4 and 5 are DISALLOWED.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within seven days.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #8 & #9 EH
Docket 24
On August 29, 2017, Corinthia Williams ("Debtor") filed a Chapter 13 voluntary petition. On October 23, 2017, Debtor’s Chapter 13 plan was confirmed.
On December 6, 2017, LVNV Funding, LLC ("LVNV") filed an unsecured claim in the amount of $1,357.47 ("Claim 3"). The same day LVNV filed a second unsecured claim in the amount of $910.02 ("Claim 4"). Six days later LVNV filed a third unsecured claim in the amount of $467.21 ("Claim 5"). On January 5, 2018, Debtor filed claim objections to all three claims.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in
12:32 PM
interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
12:32 PM
11 U.S.C. § 502(b)(1) (2005) states:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 3 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identifies a last transaction date of July 16, 2007. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable.
Claim 4 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of May 6, 2002. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 4 is unenforceable.
12:32 PM
Claim 5 is based on "retail" debt. The claim’s supporting documentation suggests that the claim fits within the category established by CAL. CODE CIV. P. § 337.
Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of February 15, 2008. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 5 is unenforceable.
For the foregoing reasons, the Objection is SUSTAINED and Claims 3, 4 and 5 are DISALLOWED.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within seven days.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Edward James Singelyn Represented By Bruce Babcock
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Frank J Cordova Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
HOLDING DATE
From: 1/4/18 Also #14
EH
Docket 14
01/04/2018
Summary of the Motion:
TENTATIVE
Creditor by its opposition requests a continuance of at least 30 days to obtain a verified appraisal of the Property.
Debtor argues that because the Motion must be filed and heard prior to confirmation of the chapter 13 plan, a continuance of the Motion cannot be granted. However, the Debtor presumes that the plan will be confirmed on January 4, 2018. It is common practice to permit secured creditors an opportunity to obtain an appraisal prior to ruling on a motion to avoid junior lien. Debtor provides no authority for the proposition that such a continuance would be unjustified in circumstances such as these nor has the Debtor articulated any legal prejudice that would result from the
12:32 PM
continuance.
In sum, the Court finds no merit in the Debtor’s reply. A continuance of the Motion for the appraisal is warranted.
APPEARANCES REQUIRED.
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Movant(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #13 EH
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Misti Gory Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Laquance Denise Mejia Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Frank Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Susan Garcia Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Tiffany Venice Turner Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
Joint Debtor(s):
Dora Maria Joya Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 142
- NONE LISTED -
Debtor(s):
Francisco Javier Medina Represented By Tamar Terzian
Joint Debtor(s):
Maria Guadalupe Medina Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 71
On December, 2014, William & Kathie Meineke ("Debtors") filed a Chapter 13 voluntary petition. On February 9, 2015, Debtors’ Chapter 13 plan was confirmed. The mandatory Chapter 13 form plan contains a provision (Section V.H) which states: "The Debtor will pay timely all postconfirmation tax liabilities directly to the appropriate taxing authorities as they become due."
Since confirmation the Trustee has filed five motions to dismiss, all of which were ultimately resolved. Additionally, the Chapter 13 plan has been modified twice. On January 10, 2018, the California Franchise Tax Board ("CFTB") filed a motion to dismiss or convert to Chapter 7 on the basis that Debtors had not paid their postconfirmation taxes. The Court notes that the motion was served on Debtors’ attorney, but was not served on Debtors.
The Court will continue the matter for CFTB to serve the motion on Debtors.
12:33 PM
Regarding the merits, the Court notes that 11 U.S.C. § 1307(c)(6) provides for dismissal or conversion for cause, which is defined to include "material default by the debtor with respect to a term of a confirmed plan." Here, the Court notes that Debtors’ confirmed plan provided that all postconfirmation tax liabilities were to be timely paid. CFTB has provided evidence that Debtors’ have yet to satisfy their 2014, 2015 and 2016 tax liabilities which constitutes a material default satisfying § 1307(c)(6).
Because Debtors do not appear to have meaningful unencumbered, unexempt assets, this Court would be inclined to dismiss the case rather than convert it to Chapter 7.
The Court is inclined to CONTINUE the matter to March 8, 2017 at 12:30 p.m. for proper service of the motion on Debtors.
APPEARANCES REQUIRED.
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Movant(s):
FRANCHISE TAX BOARD Represented By Suman Mathews
12:33 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 51
- NONE LISTED -
Debtor(s):
Saul Lara Sanchez Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 76
- NONE LISTED -
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Luis Fernando Buenrostro Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 29
- NONE LISTED -
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 6
On January 26, 2018, Markus Boyd ("Debtor") filed a Chapter 11 voluntary petition. On January 30, 2018, Debtor filed various "first-day motions": (1) motion to set budget for interim use of estate property; (2) motion for continuation of utility service;
(3) motion to employ counsel; and (4) motion to use cash collateral. Regarding the latter, an application shortening time was filed, and, on February 1, 2018, the Court set a hearing for February 8, 2018 at 1:00 p.m.
11 U.S.C. § 363(a) defines cash collateral as:
cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products,
1:00 PM
offspring, rents, or profits of property and the fees, charges, accounts or other payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.
11 U.S.C. § 363(b) provides for the use, sale, or lease of property of the estate outside of the ordinary course of business after notice and a hearing. Here, the cash collateral at issue appears to be $600 month in rental income generated by Debtor from renting his guest house to his father. Debtor also asserts that there is significant equity in the real property. Given the equity in the property, the small value of the cash collateral at issue, the lack of any opposition, and the fact that Debtor proposes to make regular monthly payments to two of the three secured creditors (Debtor disputes the validity of the third creditor’s claim), the Court finds use of cash collateral on an interim basis to be warranted.
The Court is inclined to GRANT the motion. Counsel to discuss requested length of use of cash collateral.
APPEARANCES REQUIRED.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By
1:00 PM
Nicholas W Gebelt
10:00 AM
MOVANT: LEONEL VILLA & LUCILA PINEDA
EH
Docket 8
02/13/2018
The prior case was dismissed on recommendation of the chapter 13 trustee because the Debtors failed to appear at the 341(a) meeting of creditors, failed to tender the November plan payment, and failed to account for the postpetition mortgage payment for November.
At the confirmation hearing on November 16, 2017, the Debtor’s appearance counsel indicated that the Debtors had to travel to Mexico for a family emergency. The Debtor’s declaration in support of the Motion reiterates this assertion. However, the attached booking confirmation indicates a return trip on Tuesday, November 7, 2017 (over a week prior to the 341(a) meeting of creditors held on November 16, 2017).
This discrepancy is not explained by the Debtors. Nor did the Debtors address the failure to tender a November plan payment or to account for their November 2017 mortgage payment – which were two other bases for dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Leonel Villa Represented By
Luis G Torres
Joint Debtor(s):
Lucila Pineda Represented By
10:00 AM
Movant(s):
Luis G Torres
Leonel Villa Represented By
Luis G Torres Luis G Torres Luis G Torres
Lucila Pineda Represented By Luis G Torres Luis G Torres Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 8
02/13/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Inez Verdugo Represented By
M Wayne Tucker
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: BAYVIEW LOAN SERVICING LLC
EH
Docket 9
02/13/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay and GRANT authority to offer loan workout options under ¶3 of the prayer for relief.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Harry Rhee Pro Se
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: JP MORGAN CHASE BANK NA
From: 1/9/18 EH
Docket 36
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
John P Morris Represented By
Michael Smith Sundee M Teeple
Joint Debtor(s):
Cassandra M Morris Represented By Michael Smith Sundee M Teeple
Movant(s):
JPMorgan Chase Bank, N.A. Represented By
10:00 AM
Trustee(s):
Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 23
02/13/2018
Service: Proper Opposition: Yes
Subject to discussions re adequate protection, the Court’s tentative is to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay, GRANT authority to offer loan workout options pursuant to ¶3 of prayer for relief and GRANT relief from the co-debtor stay.
APPEARANCES REQUIRED.
Debtor(s):
Warren Alan Hall Represented By Lionel E Giron
Joint Debtor(s):
Kelly Suzanne Hall Represented By Lionel E Giron
10:00 AM
Movant(s):
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BAYVIEW LOAN SERVICING LLC
EH
Docket 22
- NONE LISTED -
Debtor(s):
Howard Edward Terrell Jr. Represented By Paul Horn
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 53
02/13/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Victor Balvaneda Represented By John F Brady
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
John P Pringle (TR) Represented By Franklin C Adams
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 63
02/13/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(4). Court finds that bankruptcy case was part of a scheme to hinder, delay and defraud creditor based on multiple bankruptcy filings affecting this property. The Court finds bad faith as to the Debtor. GRANT waiver of 4001(a)(3) stay. GRANT pursuant to ¶¶ 3 and 12.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Todd Christopher Tyrrell Represented By Matthew Abbasi
Joint Debtor(s):
Kelly Jean Tyrrell Represented By Matthew Abbasi
Movant(s):
WELLS FARGO BANK, N.A., AS Represented By
Mark D Estle
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By
D Edward Hays Chad V Haes Laila Masud
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 67
02/13/2018
Service: Proper Opposition: Yes
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay and GRANT request for relief under ¶3.
APPEARANCES REQUIRED.
Debtor(s):
Brent Duane Larson Represented By Carey C Pickford
Joint Debtor(s):
Sarah Marnet Larson Represented By Carey C Pickford
Movant(s):
U.S. BANK, NATIONAL Represented By April Harriott Shreena Augustin Seth Greenhill
10:00 AM
Trustee(s):
Keith Labell Sean C Ferry
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CARMAX BUSINESS SERVICES LLC
EH
Docket 65
02/13/2018
Service is Proper Opposition: Yes
Subject to discussions regarding adequate protection, the Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT request for relief from the co-debtor stay and GRANT waiver of 4001(a)(3) stay.
APPEARANCES REQUIRED.
Debtor(s):
Martin Linares Represented By Craig K Streed Sundee M Teeple
Joint Debtor(s):
Elvia Linares Represented By
Craig K Streed Sundee M Teeple
10:00 AM
Movant(s):
Carmax Business Services LLC Represented By Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
From: 1/9/18, 1/23/18 EH
Docket 53
Service is Proper Opposition: Yes
Movant to confirm that arrears have been cured. APPEARANCES REQUIRED.
Debtor(s):
Sherry Ann Beardsley Represented By Jeffrey D Larkin
Movant(s):
Wells Fargo Bank, N.A. Represented By Mark D Estle Bruce E Brown
Beverly Lorraine Evans Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAM XII TRUST
EH
Docket 52
- NONE LISTED -
Debtor(s):
Saul Lara Sanchez Represented By Brian J Soo-Hoo
Movant(s):
CAM XII TRUST, its successors Represented By
Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 2/6/18 EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
2:00 PM
Docket 6
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 10/5/17, 11/14/17 Also #16 & #17
EH
Docket 32
- NONE LISTED -
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also #15 & #17 EH
Docket 82
Background
On August 25, 2017, Rick’s Patio, Inc. ("Debtor") filed its petition for chapter 11 relief. The Debtor is a California corporation, engaged in the business of selling new and used hot tubs (spas) and related supplies. The Debtor has designated itself as a small business under 11 U.S.C. § 101(51C).
On January 30, 2018, the Court granted the Debtor’s request for an extension of time to have its plan of reorganization confirmed such that a hearing on the Debtor’s disclosure statement could take place prior to the confirmation hearing. The Debtor’s disclosure statement ("Disclosure Statement") and plan ("Plan") were filed on December 26, 2017.
Related Documents:
Motion to Approve Disclosure Statement (Doc. #82);
Disclosure Statement (Doc. #83); and
Chapter 11 Plan (Doc. #89) (amended to include original signatures);
Standard
Before a disclosure statement may be approved after notice and a hearing, the court must find that the proposed disclosure statement contains "adequate information" to solicit acceptance or rejection of a proposed plan of reorganization.
2:00 PM
11 U.S.C. § 1125(b).
"Adequate information" means information of a kind, and in sufficient detail, so far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor's books and records, that would enable a hypothetical reasonable investor typical of the holders of claims against the estate to make a decision on the proposed plan of reorganization. 11 U.S.C. § 1125(a).
There is no set list of required elements to provide adequate information per se. A case may arise where previously enumerated factors are not sufficient to provide adequate information. Conversely, a case may arise where previously enumerated factors are not required to provide adequate information. In re Metrocraft Pub. Services, Inc., 39 B.R. 567 (Bankr. N.D.Ga. 1984). "Adequate information" is a flexible concept that permits the degree of disclosure to be tailored to the particular situation, but there is an irreducible minimum, particularly as to how the plan will be implemented. In re Michelson, 141 B.R. 715, 718-19 (Bankr. E.D.Cal. 1992).
Courts have developed lists of relevant factors for the determination of adequate disclosure. See, e.g., In re A.C. Williams Co., 25 B.R. 173, 176 (Bankr. N.D. Ohio 1982), In re Ferretti, 128 B.R. 16, 18–19 (Bankr. D.N.H. 1991), In re Malek, 10
C.B.C.2d 189, 35 B.R. 443, 443–44 (Bankr. E.D. Mich. 1983), In re Metrocraft, 39
B.R. 567, 568 (Bankr. N.D.Ga. 1984), In re Scioto Valley Mortgage Co., 88 B.R. 168, 170–71 (Bankr. S.D. Ohio 1988), In re U.S. Brass Corp., 194 B.R. 420, 424–25 (Bankr. E.D. Tex. 1996).
This Court should determine what factors are relevant and required in light of the facts and circumstances surrounding each particular case. In re East Redley Corp., 16 B.R. 429 (Bankr. E.D.Pa. 1982).
Plan Summary
Effective Date: 90 days after entry of the confirmation order
Administrative Claims
Rosenstein & Associates (BK Counsel): $30,000 (Paid in full on Effective Date)
Shafer & MacRae (Accounting Services): $5,000
Debtor’s projections indicate they will have enough funds to cover the Administrative Claims on the Effective Date
Priority Claims
Description | Amount Owed | Treatment |
2:00 PM
State of California | Unknown. Debtor is | Paid in full by August 25, |
currently | 2022 | |
Subject to an audit but | ||
disputes | ||
Any net liability |
Secured Claims
Description | Amount Owed | Treatment |
Class 1: Wells Fargo Comm. Distribution Finance LLC | Secured Claim: $773,050.60 Unimpaired | Unclear |
Class 2: First Home Bank | Secured Claim: $257,858.19 Unimpaired | Unclear |
Unsecured Claims
Description | Amount Owed | Treatment |
Class 3: General Unsecured | Total Claims: | Paid in full within 72 |
Claims | $1,590,337.12 | months of |
Impaired | Effective Date | |
Unclear |
Equity (Class 4)
Will be left unaffected by the Plan
Liquidation Analysis
Debtor asserts that the Plan will pay 100% to all classes under the Plan terms but asserts that only the First and Second liendholders would receive any value under a liquidation (sale of the Debtor’s inventory)
Feasibility
The Disclosure Statement is not sufficiently clear regarding the payments to secured creditors. For both Wells Fargo and First Home Bank, the DS and Plan indicate that the claims will be paid in accordance with the agreements with these respective
2:00 PM
lenders. However, without a summary explanation of how these lenders agreements provide for payments, an investor would have difficulty understanding how large the payments are in proportion to the sales receipts such that an investor can gauge the Debtor’s profitability. Additionally, there is no indication of the intervals, and amount of payments that will be made to GUCs (only that they will be paid over a 72 month period, e.g. will they be paid quarterly or monthly?)
Other issues of note:
It appears that the Debtor seeks to avoid the junior liens via the plan. However, avoidance of liens without a motion or adversary has resulted in litigation by junior secured creditors in other cases arguing that their lien has ridden through the bankruptcy. The Court will require, at a minimum, separate notice of avoidance.
Also, if junior liens will be paid with unsecured claimants in Class 3, then why do the financial projections show ongoing payments to SBA and FAF Loans? (are those the WF and FH loans?)
The description of risk factors is woefully inadequate. The Debtor provides no market analysis at all. Relatedly, the pre-bankruptcy events which prompted the filing are not adequately explained. The Debtor indicates that bankruptcy was prompted by entry into "several large financing agreements" with payments that could no longer be maintained. However, the Debtor does not explain what prompted it to borrow money. Were there market forces that weakened demand, for example, such that the Debtor borrowed money and what are the risks of a dip in demand in the future? Other risk factors might include explanation of the consistency of the demand for spa equipment overall, or explanation of whether the sale of spas is a particularly competitive market, etc.
The Debtor should also provide a monthly cash flow analysis.
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
2:00 PM
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
From: 9/26/17, 11/14/17 Also #15 & #16
EH
Docket 8
- NONE LISTED -
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
11:00 AM
(Holding date)
From: 8/31/17, 10/2/17, 10/18/17, 11/15/17, 12/20/17, 1/24/18
EH
Docket 110
The Court having received informal notice of a pending settlement between the parties, the hearing on this matter shall be continued to February 14, 2018, at 11:00 a.m. for the parties to finalize an agreement. Should the matter be resolved prior to the continued hearing, the February 14 hearing shall come off calendar.
APPEARANCES WAIVED. Telephonic appearances are authorized for the February 14, 2018, continued hearing.
On January 28, 2011, Brad & Deborah Stoddard ("Debtors") filed a Chapter 13 voluntary petition. On May 24, 2011, Debtors’ Chapter 13 plan was confirmed. The plan contained the following provision, section V.F.: "The debt of american Education Services will be discharged; the school has been stripped of accreditation and is on probation." On December 5, 2016, Debtors received a discharge, and, on January 13, 2017, the case was closed.
11:00 AM
On May 11, 2017, Debtors filed a motion for an order to show cause why creditor American Educational Services ("AES") should not be held in contempt court, and for damages and attorney’s fees, for intentionally violating the discharge injunction.
Because of inadequate service, the motion was originally denied without prejudice, and Debtors refiled the motion on June 1, 2017. AES filed its opposition on June 8, 2017. At a hearing on the matter on July 27, 2017, the Court continued the matter to October 2, 2017.
On July 31, 2017, the Court issued its Order to Show Cause why Matthew Resnik ("Resnik"), Brad Stoddard, and Deborah Stoddard should not be sanctioned for including a prohibited provision in a Chapter 13 plan (the "OSC"). Debtors filed their opposition on August 14, 2017. Resnik filed his opposition on August 17, 2017. AES filed its reply on August 24, 2017. Resnick filed supplemental responses on September 21 and 22, 2017.
Introduction
The OSC is issued in light of, and accordance with, the Supreme Court’s decision in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010). In Espinosa, the bankruptcy court had confirmed a Chapter 13 plan which purported to discharge student loan debt without complying with the applicable procedural requirements.
After intercepting debtor’s income tax refund to use towards payment of student loans, the creditor argued that the bankruptcy court’s order confirming the debtor’s Chapter 13 plan should be declared void. The Supreme Court held that, absent a jurisdictional or due process violation (which was not present) the bankruptcy court’s legal error in confirming the Chapter 13 plan with a provision that impermissibly discharged student loan debt, did not render the order void. At the conclusion of its opinion, the Supreme Court opined:
11:00 AM
We acknowledge the potential for bad-faith litigation tactics. But expanding the availability of relief under Rule 60(b)(4) is not an appropriate prophylaxis. As we stated in Taylor v. Freeland & Kronz, 503 U.S. 638 (1992), "debtors and their attorneys face penalties under various provisions for engaging in improper conduct in bankruptcy proceedings." Id. at 644; see also FED. R. BANKR. P. Rule 9011. The specter of such penalties should deter bad-faith attempts to discharge student loan debt without the undue hardship finding Congress required.
Espinosa, 559 U.S. at 278. Here, the Court is tasked with interpreting and implementing the guidance provided by the Supreme Court in Espinosa.
Debtors and Resnick have filed separate responses to the Court’s OSC. Debtors have raised five arguments in their opposition: (1) that the Court already found that the plan was filed in good faith; (2) that the plan must be given res judicata effect; (3) that the Court is exceeding its discretionary sanctioning authority; (4) that the OSC is an illegal ex post facto law; and (5) that FED. R. BANKR. P. Rule 9011 is inapplicable.
Resnick offers the following categories of arguments in his opposition: (1) use of the Court’s inherent sanctioning authority is inappropriate here; (2) Rule 9011 sanctions require a contempt finding; (3) Section 105 is inapplicable; and (4) the plan provision at issue is not prohibited. The Court will analyze the respondents’ arguments separately.
Debtors’ Opposition
The Court’s Good Faith Finding
11 U.S.C. § 1325(a)(3) states:
11:00 AM
Except as provided in subsection (b), the court shall confirm a plan if –
(3) the plan has been proposed in good faith and not by any means forbidden by law
Debtors argue that: "[i]t necessarily follows [from § 1325(a)(3)] that the Court has already made an express finding that the Plan was filed in good faith." This result does not necessarily follow from the language of the statute. The plain language of § 1325(a) operates to eliminate the discretion of the court if the court finds that the debtor has satisfied the nine subsections of § 1325(a); the provision does not state the consequences of a finding that some, but not all, of the § 1325(a) subsections have been satisfied. As is stated by the leading bankruptcy treatise:
The standards set forth in section 1325(a), however, are not requirements that must be met in every case before a plan can be confirmed. Unlike section 1322(a), section 1325(a) does not state that "the plan shall" comply with its listed criteria. Nor does it state, as does section 1129(a), that the court shall confirm the plan only if certain requirements are met. Instead it states only that if its criteria are met the court must confirm the plan. Therefore, the court has discretion to confirm a plan that does not comply with all of the standards of section 1325(a), particularly if no party objects.
8 COLLIER ON BANKRUPTCY ¶ 1325.01 (16th ed. 2016) (footnotes omitted).
Despite the plain language of the statute, the Ninth Circuit Court of Appeals, without any independent analysis, and relying on an out of circuit bankruptcy court decision, has determined that the requirements of § 1325(a) are mandatory for Chapter 13 plan confirmation. See In Chinichian, 784 F.2d 1440, 1443-44 (9th Cir. 1986) ("For a court to confirm a plan, each of the requirements of section 1325 must be present and the debtor has the burden of proving that each element has been met.") (citing In re Elkind, 11 B.R. 473, 476 (Bankr. D. Colo. 1981)). While it remains unclear from
11:00 AM
where the mandatory characterization of § 1325(a) arose, a variety of courts have, in passing, assumed that the § 1325(a) standards are mandatory for plan confirmation. See, e.g., Assocs. Comm. Corp. v. Rash, 520 U.S. 953, 956 (1997) ("To qualify for confirmation under Chapter 13, the Rashes’ plan had to satisfy the requirements set forth in § 1325(a) of the Code."); Shaw v. Aurgroup Fin. Credit Union, 552 F.3d 447, 459 (6th Cir. 2009) ("Numerous district and bankruptcy courts outside the Fifth, Ninth, Tent, and Eleventh Circuits, including courts within this circuit, have also held, suggested, or assumed that the provision in § 1325(a) are mandatory.") (collecting cases). But see In re Szostek, 886 F.2d 1405, 1411 (3rd Cir. 1989) ("On the other hand, if the conditions of § 1325 are not met, although the requirements of § 1322 are fulfilled, the court has the discretion to confirm the plan. If Congress had intended for
§ 1325(a) to be mandatory, it could have included that requirement with the requirements already listed in § 1322); see also Matter of Escobedo, 28 F.3d 34, 34 (7th Cir. 1994) ("We note, however, as did the court in Szostek, that while the provisions of § 1325(a)(5) may be discretionary[,] the requirements of § 1322(a)(2) are mandatory.). Indeed, even Espinosa appears to implicitly assume that the § 1325(a) requirements are mandatory. See 559 U.S. 260, 277 ("That is because § 1325(a) instructs a bankruptcy court to confirm a plan only if the court finds, inter alia, that the plan complies with the ‘applicable provisions’ of the Code.") (emphasis added). Therefore, it would appear that binding case law suggests that the § 1325(a) requirements, including good faith, are mandatory requirements for confirmation.
Res Judicata
While the Court accepts Debtors’ argument that, by confirming their Chapter 13 plan, the Court implicitly found that the plan was filed in good faith, the Court rejects Debtors’ argument that that finding is res judicata with regard to the Court. 11 U.S.C.
§ 1327(a) states: "The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." The Court is not a creditor and Debtors have advanced no argument as to how
§ 1327(a) would prevent the Court from revisiting its finding of good faith. In fact, the Ninth Circuit Court of Appeals opinion that concluded the § 1325(a) requirements were mandatory stated the following: "Because section 1325(a)(3) of Title 11 requires the Chinichians to propose their plan in good faith, the bankruptcy court has jurisdiction to revoke a plan if the plan was not filed in good faith." In re Chinichian, 784 F.2d 1440, 1442 (9th Cir. 1986). The Ninth Circuit’s further comments indicate
11:00 AM
that it believed such powers were expansive:
The Chinichians argue, however, that because section 1330 is a specific statute it should govern the more general section 105. The Mancari rationale that a specific statute cannot be nullified by a more general one is only applicable where a conflict exists.
Section 1330 provides a method of revoking a confirmation order "on request of a party in interest." While it does not specifically authorize such a revocation by the court sua sponte, it does not prohibit such action. Section 105 constitutes authority for the court to issue any order necessary to carry out the provisions of the Code. That reservoir of power in no manner conflicts with the authority to act upon the request of an interested party, but constitutes a supplemental method of revocation in the event of fraud. It would be absurd to hold that the bankruptcy court is powerless to correct a fraud unless first requested by an interested party, and that is not what section 1330 provides.
Section 105 sets out the power of the bankruptcy court to fashion orders as necessary pursuant to the purposes of the Bankruptcy Code.
Further, a bankruptcy court is a court of equity. As a court of equity, it may look through form to the substance of a transaction and devise new remedies where those at law are inadequate. Further, it can modify or vacate its order so long as no intervening right has become vested in reliance thereon. Thus, the bankruptcy court had equitable power to revoke its order partially confirming the Chinichians’ plan once it recognized the Chinichians did not file their plan in good faith as required by section 1325(a)(3).
Id. at 1442-43 (citations omitted).
11:00 AM
Debtors’ argument that § 1327 operates to prevent the Court from modifying its implicit good faith finding when confirming the plan lacks merit. The statute states that the terms of the provisions of a confirmed plan are binding on the debtor and creditors. The Court is not a creditor or a debtor nor is the Court’s good faith finding a provision of a confirmed plan. Nor does res judicata prevent a court from revoking or amending its own order. Such a principle would eliminate the ability to revoke or modify a judgment altogether, rendering obsolete FED. R. CIV. P. Rules 59 & 60, in addition to many others legal provisions. Debtors’ argument that the Court is bound by its own previous finding due to res judiciata is not compelling.
The Court Lacks Authority to Issue Sanctions
Debtors’ argument that the Court lacks authority to issue sanctions can be summarized in the following: (1) the Court is precluded from finding that the plan was proposed in bad faith due to res judicata; and (2) the Court must find that the plan was proposed in bad faith for sanctions to be warranted. Because the Court rejects (1), as outlined above, Debtors’ argument must fail.
The OSC is an "Illegal Ex Post Facto Law"
In their fourth argument, Debtors argue that this OSC is an ex post facto law. As noted by Debtors, Art. 1 §§ 9 & 10 of the Constitution prohibit ex post facto laws. Article 1 of the Constitution deals with the legislative branch – the branch of the government that makes laws. The Judicial Branch does not make laws. Debtors’ argument that a court order is an ex post facto law is therefore, necessarily, invalid.
Rule 9011 is Inapplicable
FED. R. BANKR. P. Rule 9011(b)(2) states:
11:00 AM
By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law
FED. R. BANKR. P. Rule 9011(c)(1)(B) states: "[O]n its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto."
Debtors’ nine subsection argument why FED. R. BANKR. P. Rule 9011 is inapplicable is rather chaotic and disorganized. Regardless, the Court acknowledges that, as to Debtors, Rule 9011 sanctions are inapplicable due to the operation of Rule 9011(c)(2) (A). Therefore, the Court agrees that Rule 9011 cannot operate as the source of sanctions against Debtors.
Resnick’s Opposition
A. Inherent Sanctioning Authority
The Supreme Court has stated: "it is firmly established that the power to punish for contempts is inherent in all courts." Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (quoting Ex parte Robinson, 19 Wall. 505, 510 (1874)); see also Fink v. Gomez, 239
11:00 AM
3d 989, 992 (9th Cir. 2001) ("[T]he district court has the inherent authority to impose sanctions for bad faith, which includes a broad range of willful improper conduct."). The Ninth Circuit has stated: "Itel teaches that sanctions are justified when a party acts for an improper purpose – even if the act consists of making a truthful statement or a non-frivolous argument or objection. Fink, 239 F.3d at 922; see also In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (discussing bad faith and willful misconduct).
Nevertheless, as Resnick states: "when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power." Chambers, 501 U.S. at 50. Because the Court believes that the existing framework provides an adequate basis for sanctions in this type of situation, the Court need not rely on its inherent sanctioning authority.
B. Rule 9011
When imposing sanctions, sua sponte, under FED. R. BANKR. P. Rule 9011, "sanctions ‘will ordinarily be imposed only in situations that are akin to a contempt of court.’" United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1116 (9th Cir. 2001) (citing Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998); see also FED. R. CIV. P. Rule 11, Advisory Committee Notes ("Since show cause orders will ordinarily be issued only in situations that are akin to a contempt of court, the rule does not provide a ‘safe harbor’ to a litigant for withdrawing a claim, defense, etc., after a show cause has been issued on the court’s own initiative."). "[P]rior to imposing court-initiated sanctions, the district court is required to determine whether counsel’s conduct is ‘akin to contempt.’" Gonzalez v. Texaco Inc., 344 Fed. Appx. 304, 308 (9th Cir. 2009) (quoting R&D Latex Corp., 242 F.3d 1102, 1118)).
In this situation, the Court defers to Bankruptcy Judge TeSelle:
At the hearing on the motions to dismiss conducted by the Court in these cases
11:00 AM
on May 2, 2000, it was clear to the Court that debtors’ counsel included these plan provisions in the hope that they would trap an unwary student loan creditor. If a plan containing a student loan discharge provision is confirmed, debtors and their counsel argue that the student loan obligation is discharged under the theory of res judicata, improperly relying on a skewed interpretation of the opinion of the Tenth Circuit Court of Appeals in In re Andersen, 179 F.3d 1253 (10th Cir. 1999) to support their position. If an objection to confirmation is raised by either the Trustee or the student loan creditor, the offending language is simply removed from the plan, and debtors are no worse off for their attempt. The Court will not permit this type of gamesmanship on the part of debtors and their counsel to continue. Conduct such as this has no place in the practice of bankruptcy law, and will not be tolerated by this Court.
The citation of the opinion of the Tenth Circuit in Andersen, supra, as authority for the practice of intentionally inserting language in a chapter 13 plan that violates the Bankruptcy Code and Rules, and as authorizing counsel to stand by silently and thereby induce the Court to confirm a plan that contains a provision that counsel knows violates the Bankruptcy Code and Rules, is at once offensive and specious. Counsel appearing before this Court are officers of the Court and are ethically obligated to inform the Court if they are aware of the existence of a plan provision that renders the plan non- confirmable.
Rather than recognizing their obligations to the Court and to opposing counsel, counsel for debtors in these cases go so far as to suggest that they are compelled by Andersen to recommend that their clients include these unlawful plan provisions, implying that their failure to do so might be an act of professional negligence. The Court does not believe that a fair reading of the opinion of the Tenth Circuit in Andersen can reasonably lead one to conclude that the Tenth Circuit intended to encourage the practice of intentionally inserting unlawful plan provisions in the hope that confirmation of the plan will occur and the time for appeal will pass before such provisions are noticed so that debtors and their counsel can then claim res judicata. Such a skewed reading of Andersen fails to account for the ethical obligations owed by members of the bar to the Court and to each other.
11:00 AM
This is particularly true given the volume of chapter 13 filings in this district, and the fact that the Court does not have the time to independently review every chapter 13 plan and confirmation order to determine whether an attempt to unlawfully discharge a student loan obligation is being made. Because the Court has apparently been unable to rely on the ethical conduct of some of the counsel representing chapter 13 debtors appearing before it, the Court, up to his point in time, has been forced to rely on a party in interest other than the debtor to point out those instances in which such student loan discharges have been attempted through plan provisions. Where the Court has become aware of such attempts, either through objections by the student loan creditor or through the inclusion of such a provision in the order confirming the chapter 13 plan, the Court has refused to confirm the plan containing such language, and has stricken language from confirmation orders attempting to effect a discharge of student loan indebtedness in this manner.
. . .
In light of the existing case law concerning the impropriety of the inclusion of such student loan discharge provisions in chapter 13 plans, and the unambiguous language of the Bankruptcy Code and Rules, the Court believes that the inclusion of such a provision in a chapter 13 plan and/or order confirming a chapter 13 plan is both unethical and sanctionable conduct pursuant to Bankruptcy Rule 9011. Bankruptcy Rule 9011(b) concerns representations made to the Court. It states that by presenting a paper to the Court, an attorney or unrepresented party certifies to the best of his or her knowledge, information and belief, formed after a reasonable inquiry under the circumstances, that the legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. See FED. R. BANKR. P. Rule 9011(b)(2).
. . .
11:00 AM
The Court refuses to allow counsel for debtors to turn the inclusion of a student loan discharge provision in a chapter 13 plan into a "can’t lose" proposition. The Court therefore concludes that Andersen provides no protection from the imposition of sanctions under Rule 9011(b) in cases in
which a student loan discharge provision is included in a confirmed chapter 13 plan.
In re Hensley, 249 B.R. 318, 320-323 (Bankr. W.D. Okla. 2000).
C. Section 105
11 U.S.C. § 105(a) states:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary to enforce or implement court orders or rules, or to prevent an abuse of process.
Resnick offers a single argument in support of his position that § 105(a) is inapplicable: that the provision only applies to violations of a specific court order. Resnick cites In re Dyer in support of this statement. 322 F.3d 1178, 1196 (9th Cir. 2003) ("Civil contempt authority allows a court to remedy a violation of a specific order (including ‘automatic’ orders, such as the automatic stay or discharge injunction).").
11:00 AM
Dyer does not explicitly state that § 105(a) is strictly limited to remedying violations of specific court orders, nor does it cite any authority from which it could be inferred that the Dyer court had such an opinion. Indeed § 105(a) explicitly mentions, in addition to court orders, rules and "abuse of process"; the latter might be invoked in the absence of a specific court order.
The Supreme Court, on two occasions after Dyer, has written an opinion which indicates that § 105 is not strictly limited to correcting violations of specific court orders. First, in Marrama v. Citizens Bank of Mass., the Supreme Court wrote:
On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate to prevent an abuse of process described in § 105(a) of the Code, is surely adequate to authorize an immediate denial of a motion to convert filed under § 706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.
549 U.S. 365, 375 (2007) (footnote omitted). The "abuse of process" referenced in Marrama was not a violation of a specific court order, but, rather, "an unmeritorious attempt to qualify as a debtor under Chapter 13." Id.
Second, in Law v. Siegel, the Supreme Court stated: "Section 105(a) confers authority to ‘carry out’ the provisions of the Code." This statement is natural, since the first sentence of § 105(a) states: "[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title."
Here, the Court concludes that a specific and definite court order has not been violated. Nevertheless, the reconciliation of Dyer and Marrama helps illustrate the proper approach forward. The Ninth Circuit Court of Appeal’s instructions that
11:00 AM
sanctions under § 105(a) are appropriate for violation of a specific and definite court order is derived from the non-bankruptcy standard for civil contempt. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City & Cnty. of S.F., 968 F.2d 850, 856 n.9 (9th Cir. 1992)) ("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. The burden then shifts to the contemnors to demonstrate why they were unable to comply."). Nevertheless, as illustrated by Marrama, the Court’s authority under § 105(a) is not strictly limited to issuing sanctions for civil contempt. While a civil contempt finding under § 105(a) may not be appropriate in these circumstances, it does not follow that the Court lacks the ability to adequately and equitably resolve this situation.
The Court is inclined to CONTINUE the hearing for approximately thirty days to allow Debtors to file a supplemental brief addressing why they should not be sanctioned pursuant to the Court’s inherent sanctioning authority. No further briefing from Resnick is requested.
APPEARANCES REQUIRED.
Debtor(s):
Brad Stoddard Represented By Matthew D Resnik David Brian Lally
Joint Debtor(s):
Deborah Ann Stoddard Represented By Matthew D Resnik David Brian Lally
11:00 AM
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
11:00 AM
From: 12/13/17 EH
Docket 47
- NONE LISTED -
Debtor(s):
Monica Faye Wooley Represented By
Filemon Kevin Samson III
Trustee(s):
Helen R. Frazer (TR) Pro Se
11:00 AM
Docket 234
- NONE LISTED -
Debtor(s):
Charles Frederick Biehl Represented By
Daryl L Binkley - DISBARRED - Steven L Bryson
Trustee(s):
John P Pringle (TR) Represented By James C Bastian Jr Elyza P Eshaghi Brandon J Iskander Lynda T Bui
Leonard M Shulman
11:00 AM
Docket 50
No opposition has been filed. Service was okay.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,750.00 Trustee Expenses: $ 72.42
Attorney Fees: $ 2,674.17 Attorney Costs: $ 325.83
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Luz Ampelia Castro Represented By George P Hobson Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
11:00 AM
Carmela Pagay
11:00 AM
EH
Docket 9
On December 21, 2017, LV Investments, LLC ("Debtor") filed a Chapter 7 voluntary petition. On January 8, 2018, the case was dismissed for failure to file case commencement documents.
On January 17, 2018, UST filed a motion for an order compelling attorney to file disclosure of compensation pursuant to 11 U.S.C. § 329. On January 22, 2018, Debtor’s attorney, Wayne Tucker, filed his disclosure of compensation for attorney.
11 U.S.C. § 329(a) states:
Any attorney representing a debtor in a case under this title, or in connection
11:00 AM
with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
FED. R. BANKR. P. Rule 2016(b) provides further details regarding the requirements imposed by § 329. Here, Debtor’s counsel has failed to file the required disclosure of compensation. The Court has authority to enter an order directing the disclosure of such compensation, and will routinely direct Debtor’s counsel to file the required disclosure. See, e.g., In re Shuma, 124 B.R. 668, 677 (Bankr. W.D. Pa. 1991).
It appears that Debtor’s attorney filed the Statement of Attorney Compensation. Therefore, it appears that the matter is MOOT. Pending UST’s review of the disclosure of compensation, the Court will retain jurisdiction over matters related to 11 U.S.C. § 329.
APPEARANCES REQUIRED.
Debtor(s):
LV Investments, LLC Represented By
M Wayne Tucker
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 82
On April 4, 2017, William & Shawna Mendez ("Debtors") filed a Chapter 7 voluntary petition. On July 12, 2017, the Court approved the stipulation of Trustee and Debtors to extend the deadline to file a complaint objecting to discharge until September 1, 2017. On August 23, 2017, Trustee filed a motion for extension of time to file a complaint objecting to discharge. On September 15, 2017, the Court granted Trustee’s motion extending the deadline to object to Debtors’ discharge until October 16, 2017. Afterwards, Trustee and Debtors entered into two stipulations further extending the deadline for Trustee or UST to file a complaint objecting to discharge. The second stipulation imposed a deadline of January 19, 2018. On January 19, 2018, UST filed a motion for a further extension on the basis that Debtors have not yet provided adequate financial records.
FED. R. BANKR. P. Rule 4004(a) states:
In a chapter 7 case, a complaint, or a motion under § 727(a)(8) or (9) of the Code, objecting to the debtor’s discharge shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). In a
11:00 AM
chapter 11 case, the complaint shall be filed no later than the first date set
for the hearing on confirmation. In a chapter 13 case, a motion objecting to the debtor’s discharge under § 1328(f) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). At least 28 days’ notice of the time so fixed shall be given to the United States trustee and all creditors as provided in Rule 2002(f) and (k) and to the trustee and the trustee’s attorney.
And FED. R. BANKR. P. Rule 4004(b) states:
On motion of any party in interest, after notice and hearing, the court may for cause extend the time to object to discharge. Except as provided in subdivision (b)(2), the motion shall be filed before the time has expired.
A motion to extent the time to object to discharge may be filed after the time for objection has expired and before discharge is granted if (A) the objection is based on facts that, if learned after the discharge, would provide a basis for revocation under § 727(d) of the Code, and (B) the movant did not have knowledge of those facts in time to permit an objection. The motion shall be filed promptly after the movant discovers the facts on which the objection is based.
Here, Debtor’s delay in providing the requested information constitutes sufficient cause to extend the deadline. See COLLIER ON BANKRUPTCY ¶ 4004.03[2] (16th ed. 2013) ("A debtor’s delays in responding to discovery may be sufficient cause.
Obviously, a delay in the meeting of creditors to a date close to or after the deadline may constitute such cause.") (citing In re McCormack, 244 B.R. 203 (Bankr. D. Conn. 2000)).
Moreover, Debtor’s failure to oppose may be deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
11:00 AM
The Court is inclined to GRANT the motion.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
11:00 AM
Also #8 EH
Docket 521
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
From: 5/11/16, 6/8/16, 6/29/16, 8/31/16, 10/5/16, 11/9/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17
Also #7 EH
Docket 322
05/11/2016
Based on the representations made to the Court by counsel for the Parties that negotiations are ongoing, and based on the consent of the Parties to a continuance, the Court shall CONTINUE the hearing on the Motion to June 8, 2016 at 11:00 a.m.
APPEARANCES ARE WAIVED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Summer M Shaw George Hanover
LIBERTY ORTHOPEDIC Represented By Summer M Shaw
2:00 PM
George Hanover
UNIVERSAL ORTHOPAEDIC Represented By Summer M Shaw George Hanover
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01308 Cisneros v. BWI CONSULTING, LLC et al
A. Cisneros against BWI CONSULTING, LLC, Black and White, Inc., BLACK AND WHITE BILLING COMPANY, BLACK AND WHITE INK, MEHRAN DEVELOPMENT CORPORATION. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 1/13/16, 3/23/16, 5/25/16, 7/27/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
MEHRAN DEVELOPMENT Pro Se
2:00 PM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01309 Cisneros v. DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN
A. Cisneros against DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential Transfer (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/2017
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
DOUGLAS J. ROGER, M.D., INC. Represented By
Summer M Shaw
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01196 Grobstein, Chapter 7 Trustee v. Polacek, as Trustee of the Margaret J. Heath
From: 11/15/17 EH
Docket 3
- NONE LISTED -
Debtor(s):
Michelle Meredith Represented By Summer M Shaw
Defendant(s):
Sharyn Polacek, as Trustee of the Pro Se
Plaintiff(s):
Howard B Grobstein, Chapter 7 Represented By
2:00 PM
Trustee(s):
Noreen A Madoyan
Howard B Grobstein (TR) Represented By Noreen A Madoyan
2:00 PM
Adv#: 6:15-01206 Speier v. Simmons et al
FROM: 12/13/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
Angela Simmons Represented By David Brian Lally
David Schanhals Represented By David Brian Lally
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
2:00 PM
Adv#: 6:17-01190 Speier v. U.S. Trust, Bank of America Private Wealth Managem
From: 11/8/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
U.S. Trust, Bank of America Private Represented By
Benjamin Nachimson
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
2:00 PM
Adv#: 6:15-01370 Speier v. Test-Rite Products Corp. et al
§ 3439.04(a)(1) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (2) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(A) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (3) Fraudulent Transfer Pursuant to 11 U.S.C. § 544(b) and Cal. Civ. Code §§ 3439.04(a)(2), 3439.05 and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (4) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(B) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (5) Conversion; (6) Unlawful Payment of Dividends; (7) Breach of Fiduciary Duty by Officer; (8) Breach of Fiduciary Duty by Controlling Shareholder; and (9) Declaratory Relief as to Alter Ego Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 3/2/16, 4/6/16, 4/27/16, 6/29/16, 7/20/16, 8/3/16, 9/28/16, 11/9/16, 3/29/17, 8/2/17, 11/8/17, 1/10/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Defendant(s):
Test-Rite Products Corp. Represented By
2:00 PM
Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite International (U.S) Co. Represented By
Julie A Garcia John Y Kim Aaron S Craig
Test-Rite International Co. Ltd. Represented By Julie A Garcia Aaron S Craig Joon M Khang John Y Kim Brian Wheeler
Chester Lee Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Christina Ma Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Test-Rite International (US) Co. Ltd. Represented By
Joon M Khang Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite Products Corp. Represented By Joon M Khang Julie A Garcia
2:00 PM
John Y Kim Aaron S Craig
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Marc C Forsythe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
12:30 PM
EH
Docket 93
02/15/2018
The Court finds that provision 3.d.3. of the "order confirming plan which provides that the plan is modified to comply with the requirements of the court's approved plan form" implicitly incorporates the provision of the form plan which requires debtors to remain current as to postpetition taxes. Thus, based on the failure to remain current postpetition, the Court is inclined to GRANT the Motion and dismiss the case.
Additionally, the Debtors, though properly served, have failed to file opposition. As such they are deemed to consent to the granting of the Motion pursuant to LBR 9013- 1(h).
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Roy Kenneth Scott Represented By Sunita N Sood
Joint Debtor(s):
Tashiea Scott Represented By
Sunita N Sood
Movant(s):
California Franchise Tax Board Represented By Brian D Wesley
12:30 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 51
02/15/2018
BACKGROUND
On November 17, 2016, Robert and Emmyruth Orina (collectively, the "Debtors") filed their petition for chapter 13 relief. The Debtors’ chapter 13 plan was confirmed on January 31, 2017. The case was dismissed on December 4, 2017, after the Debtors failed to file opposition or response to a Trustee’s Motion to Dismiss for failure to make plan payments.
On January 11, 2018, the Debtors filed a Motion to Vacate Dismissal ("Motion"). The Motion indicates that the Debtors fell behind because of a reduction in work hours. The Debtors indicate they now have the funds to cure the delinquency of $4,905.79. However, the Trustee in his comments indicates that by the date of the hearing the delinquency of the Debtors will have increased to $12,246.79. Moreover, the Court notes that there was no effort by the Debtors to oppose the Motion and seek suspension of payments via a Motion to Modify prior to the dismissal when the alleged reduction in pay occurred.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to DENY the Motion.
APPEARANCES REQUIRED.
12:30 PM
Debtor(s):
Robert Ibay Orina Represented By
Timothy L McCandless
Joint Debtor(s):
Emmyruth Amizola Orina Represented By
Timothy L McCandless
Movant(s):
Robert Ibay Orina Represented By
Timothy L McCandless
Emmyruth Amizola Orina Represented By
Timothy L McCandless
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Cynthia Ramos Represented By Hayk Grigoryan
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
Joint Debtor(s):
Dora Maria Joya Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Marco Alberto Flores Represented By Rhonda Walker
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Gilbert Richard Enriquez Represented By
Raj T Wadhwani
Joint Debtor(s):
Lisa Lynn Enriquez Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Margaret Henson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Michael Adam Moore Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Nicholas Anthony Parisi Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Natona Smith Represented By Natalie A Alvarado
Joint Debtor(s):
Tameiko Smith Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Ana M Orozco Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Christina Irene Dillon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Marc Burns Represented By
Stuart R Simone
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
John Martin Martinez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
John Henry Vasquez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah L Tafolla Represented By
Jessica De Anda Leon
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Raymond Ballejos Represented By Natalie A Alvarado
Joint Debtor(s):
Veronica Ballejos Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Singleton Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Elmy Martinez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Felipe Gerardo Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
MOVANT: LEONEL VILLA & LUCILA PINEDA
From: 2/13/18 EH
Docket 8
02/13/2018
The prior case was dismissed on recommendation of the chapter 13 trustee because the Debtors failed to appear at the 341(a) meeting of creditors, failed to tender the November plan payment, and failed to account for the postpetition mortgage payment for November.
At the confirmation hearing on November 16, 2017, the Debtor’s appearance counsel indicated that the Debtors had to travel to Mexico for a family emergency. The Debtor’s declaration in support of the Motion reiterates this assertion. However, the attached booking confirmation indicates a return trip on Tuesday, November 7, 2017 (over a week prior to the 341(a) meeting of creditors held on November 16, 2017).
This discrepancy is not explained by the Debtors. Nor did the Debtors address the failure to tender a November plan payment or to account for their November 2017 mortgage payment – which were two other bases for dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Leonel Villa Represented By
Luis G Torres
12:30 PM
Joint Debtor(s):
Lucila Pineda Represented By Luis G Torres
Movant(s):
Leonel Villa Represented By
Luis G Torres Luis G Torres Luis G Torres
Lucila Pineda Represented By Luis G Torres Luis G Torres Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 61
- NONE LISTED -
Debtor(s):
Encarnacion Iniguez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Brenda Fleming Bell Represented By Thomas Watkins
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 44
- NONE LISTED -
Debtor(s):
Arthur Leo Gent Represented By April E Roberts
Joint Debtor(s):
Wanda Sue Gent Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 47
- NONE LISTED -
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 54
- NONE LISTED -
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 37
- NONE LISTED -
Debtor(s):
Tracie Cornett-Martin Represented By Nathan Fransen
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 21
- NONE LISTED -
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:14-01116 Verbree v. Sanderson
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allen Dale Sanderson Represented By
Robert K McKernan
Defendant(s):
Allen Dale Sanderson Represented By
Robert K McKernan
Plaintiff(s):
Margaret Verbree Represented By Stephen A Madoni
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
From: 10/5/17, 11/14/17, 2/13/18 EH
Docket 32
- NONE LISTED -
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Ohlone Tribe of Carmel First Represented By Odeha L Warren
Movant(s):
Ohlone Tribe of Carmel First Represented By Odeha L Warren
3:00 PM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
EH
Docket 94
- NONE LISTED -
Debtor(s):
Luevina Henry Represented By Nancy Korompis
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Movant(s):
Luevina Henry Pro Se
Plaintiff(s):
Luevina Henry Pro Se
3:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
3:00 PM
Also #5 EH
Docket 141
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
3:00 PM
Also #4 EH
Docket 147
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
9:30 AM
Adv#: 6:14-01116 Verbree v. Sanderson
From: 2/20/18 EH
Docket 1
Debtor(s):
Allen Dale Sanderson Represented By
Robert K McKernan
Defendant(s):
Allen Dale Sanderson Represented By
Robert K McKernan
Plaintiff(s):
Margaret Verbree Represented By Stephen A Madoni
Trustee(s):
Arturo Cisneros (TR) Pro Se
12:30 PM
Also #2 & #3 EH
Docket 169
- NONE LISTED -
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Movant(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 170
- NONE LISTED -
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Movant(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 168
- NONE LISTED -
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 33
2/27/2018
The Court is inclined to GRANT the motion.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppoistion is presented at the hearing, the hearing may be continued.
Debtor(s):
Deborah D. Pierce Represented By
M Wayne Tucker
Movant(s):
Deborah D. Pierce Represented By
M Wayne Tucker M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 143
- NONE LISTED -
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Movant(s):
Edward Edmund Zozaya Represented By Dana Travis
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 20
- NONE LISTED -
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Movant(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #6 EH
Docket 0
On November 29, 2017, Lena Wade ("Debtor") filed a Chapter 13 voluntary petition and plan. On December 28, 2017, Debtor filed an amended plan. On January 11, 2018, Trustee filed an objection to confirmation. Among the grounds listed in Trustee’s objection was that confirmation should contain a condition that prohibited Debtor from modifying the plan to pay less than 100% to unsecured creditors unless Debtor paid all disposable income into the plan. On January 25, 2018, Debtor filed her opposition to Trustee’s objection. On February 5, 2018, Trustee filed a reply brief.
Trustee requests that this Court adopt the holding of In re McCarthy, 554 B.R. 388 (Bankr. W.D. Tex. 2016). The Court declines to do so for the reasons that follow.
12:30 PM
11 U.S.C. § 1325(a) enumerates plan confirmation requirements. If the confirmation requirements are satisfied then "[e]xcept as provided in subsection (b), the court shall confirm [the] plan." Id. 11 U.S.C. § 1325(b)(1) states:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan ---
the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Subject to the discussion below, for the sake of analysis, the Court will assume § 1325(b)(1) is applicable here. Trustee argues in section II.D of its brief that once
§ 1325(b)(1) is invoked, confirmation is discretionary:
However, the language in § 1325(b) is permissive and, therefore, more discretionary – "the court MAY not confirm unless . . ." Therefore, debtor’s argument that the court MUST confirm the plan because it meets the requirements of § 1325 is not supported by the language of the statute. In fact, the Chapter 13 Trustee would argue that it is the discretionary language of
§ 1325(b)(1) that allows the court, under its equitable powers, to order a conditional confirmation as the court did in McCarthy.
[Dkt. No. 24, pg. 10, lines 1-8] (parenthesis omitted) (italicization added for emphasis). Trustee’s assertion that the language of § 1325(b) is permissive and discretionary, however, is statutorily incorrect. 11 U.S.C. § 102(4) states: "’may not’ is prohibitive, and not permissive." As a result, the foundation of Trustee’s position appears to rest on a misreading of the statute.
12:30 PM
Instead, the Code provides for the following analysis at plan confirmation: (1) if the debtor has satisfied the § 1325(a) confirmation requirements and no objection is received, then the Court must confirm the plan; (2) if an objection is received and the debtor has not satisfied § 1325(b)(1), the Court cannot confirm the plan; and (3) if an objection is received and the debtor has satisfied § 1325(a)-(b)(1), then the Court must confirm the plan. See, e.g., 8 COLLIER’S ON BANKRUPTCY ¶ 1325.11[e] (16th ed. 2016) ("If an objection to confirmation is filed under section 1325(b)(1), the objection must be denied when ‘the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim.’ . . . [I]f the plan provides that the claims are to be paid in full, the trustee cannot demand that the debtors devote all of their projected disposable income each month to payment of claims in order to pay them more quickly.").
Even if § 1325(b)(1) provided for a discretionary determination by the Court, the nature of the objection filed by Trustee is inadequate to invoke the § 1325(b)(1) requirements. See, e.g., In re Torres, 193 B.R. 319, 322-23 (Bankr. N.D. Cal. 1996) ("in order for that subsection [§1325(b)(1)(B)] to become applicable to confirmation, an objection to confirmation must be made alleging that a debtor is not devoting all disposable income to the plan for a minimum period of three years."). As a result, even if § 1325(b)(1) provided for a discretionary determination, the standard would be irrelevant in this case.
Apart from the statutory interpretations problems with the Trustee’s argument, the Court finds that policy and equitable considerations weigh against Trustee’s position. The Court notes that the disposable income requirement is disjunctive: either the debtor must pledge all disposable income to the plan or the debtor must pay unsecured creditors in full. The Trustee does not dispute that Debtor has satisfied the disjunctive test.
Ultimately, the Trustee relies upon the Court’s § 105 equitable powers in support of the request at issue. Rarely will it be the case, however, that the equities will in favor of creating a fixed rule binding for years regardless of changes in circumstances. The review of a proposed plan modification is generally a highly equitable endeavor that
12:30 PM
emphasizes the totality of the circumstances. Replacing that equitable analysis with a rigid rule not provided for by the Code is simply inequitable.
The Court does agree, however, that a plan term requiring Debtors in a 100% plan to have to account for excess disposable income, in the even they later file a motion to modify, is of benefit.
APPEARANCES REQUIRED.
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
On November 29, 2017, William & Carla Walker ("Debtors") filed a Chapter 13 voluntary petition. On December 7, 2017, Debtors filed a Chapter 13 plan. On January 11, 2018, Trustee filed an objection to confirmation. Among the grounds listed in Trustee’s objection was that confirmation should contain a condition that prohibited Debtors from modifying the plan to pay less than 100% to unsecured creditors unless Debtor paid all disposable income into the plan. On January 25, 2018, Debtors filed their opposition to Trustee’s objection. On February 5, 2018, Trustee filed a reply brief.
Trustee requests that this Court adopt the holding of In re McCarthy, 554 B.R. 388 (Bankr. W.D. Tex. 2016). The Court declines to do so for the reasons that follow.
12:30 PM
11 U.S.C. § 1325(a) enumerates plan confirmation requirements. If the confirmation requirements are satisfied then "[e]xcept as provided in subsection (b), the court shall confirm [the] plan." Id. 11 U.S.C. § 1325(b)(1) states:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan ---
the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Subject to the discussion below, for the sake of analysis, the Court will assume § 1325(b)(1) is applicable here. Trustee argues in section II.D of its brief that once
§ 1325(b)(1) is invoked, confirmation is discretionary:
However, the language in § 1325(b) is permissive and, therefore, more discretionary – "the court MAY not confirm unless . . ." Therefore, debtor’s argument that the court MUST confirm the plan because it meets the requirements of § 1325 is not supported by the language of the statute. In fact, the Chapter 13 Trustee would argue that it is the discretionary language of
§ 1325(b)(1) that allows the court, under its equitable powers, to order a conditional confirmation as the court did in McCarthy.
[Dkt. No. 24, pg. 10, lines 1-8] (parenthesis omitted) (italicization added for emphasis). Trustee’s assertion that the language of § 1325(b) is permissive and discretionary, however, is statutorily incorrect. 11 U.S.C. § 102(4) states: "’may not’ is prohibitive, and not permissive." As a result, the foundation of Trustee’s position appears to rest on a misreading of the statute.
12:30 PM
Instead, the Code provides for the following analysis at plan confirmation: (1) if the debtor has satisfied the § 1325(a) confirmation requirements and no objection is received, then the Court must confirm the plan; (2) if an objection is received and the debtor has not satisfied § 1325(b)(1), the Court cannot confirm the plan; and (3) if an objection is received and the debtor has satisfied § 1325(a)-(b)(1), then the Court must confirm the plan. See, e.g., 8 COLLIER’S ON BANKRUPTCY ¶ 1325.11[e] (16th ed. 2016) ("If an objection to confirmation is filed under section 1325(b)(1), the objection must be denied when ‘the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim.’ . . . [I]f the plan provides that the claims are to be paid in full, the trustee cannot demand that the debtors devote all of their projected disposable income each month to payment of claims in order to pay them more quickly.").
Even if § 1325(b)(1) provided for a discretionary determination by the Court, the nature of the objection filed by Trustee is inadequate to invoke the § 1325(b)(1) requirements. See, e.g., In re Torres, 193 B.R. 319, 322-23 (Bankr. N.D. Cal. 1996) ("in order for that subsection [§1325(b)(1)(B)] to become applicable to confirmation, an objection to confirmation must be made alleging that a debtor is not devoting all disposable income to the plan for a minimum period of three years."). As a result, even if § 1325(b)(1) provided for a discretionary determination, the standard would be irrelevant in this case.
Apart from the statutory interpretations problems with the Trustee’s argument, the Court finds that policy and equitable considerations weigh against Trustee’s position. The Court notes that the disposable income requirement is disjunctive: either the debtor must pledge all disposable income to the plan or the debtor must pay unsecured creditors in full. The Trustee does not dispute that Debtor has satisfied the disjunctive test.
Ultimately, the Trustee relies upon the Court’s § 105 equitable powers in support of the request at issue. Rarely will it be the case, however, that the equities will in favor of creating a fixed rule binding for years regardless of changes in circumstances. The review of a proposed plan modification is generally a highly equitable endeavor that
12:30 PM
emphasizes the totality of the circumstances. Replacing that equitable analysis with a rigid rule not provided for by the Code is simply inequitable.
The Court does agree, however, that a plan term requiring Debtors in a 100% plan to have to account for excess disposable income, in the even they later file a motion to modify, is of benefit.
APPEARANCES REQUIRED.
Debtor(s):
William Edward Walker Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Mark Miller Represented By
Bruce A Boice
Trustee(s):
Arturo Cisneros (TR) Pro Se
12:30 PM
Also #11 EH
Docket 23
The Court has reviewed the motion and finding good cause, the Court is inclined to GRANT the motion, avoiding the lien of The Bank of New York Mellon upon receipt of a Chapter 13 discharge.
APPEARANCES REQUIRED.
Debtor(s):
Anna C. Hopson Represented By Julie J Villalobos
Joint Debtor(s):
George E. Hopson Represented By Julie J Villalobos
Movant(s):
Anna C. Hopson Represented By Julie J Villalobos
George E. Hopson Represented By Julie J Villalobos
12:30 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #10 EH
Docket 0
- NONE LISTED -
Debtor(s):
Anna C. Hopson Represented By Julie J Villalobos
Joint Debtor(s):
George E. Hopson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Oracio Rosales Hernandez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
John Henry Washington Jr Represented By Jeffrey N Wishman
Joint Debtor(s):
Carolyn Washington Represented By Jeffrey N Wishman
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Michael Phillip Young Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 150
- NONE LISTED -
Debtor(s):
Enrique Artemio Barba Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 78
- NONE LISTED -
Debtor(s):
Scott Allan Oswald Represented By Richard Lynn Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 96
- NONE LISTED -
Debtor(s):
ROBERT A HAGUE Represented By Manfred Schroer
Joint Debtor(s):
DIANNE L HAGUE Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 53
- NONE LISTED -
Debtor(s):
Jeremy Joseph Salas Represented By Robert W Ripley
Joint Debtor(s):
Ronda-Sue Alice Marie Salas Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 53
On July 18, 2016, Conchita Ang ("Debtor") filed for chapter 13 relief. Rod Danielson is the duly appointed chapter 13 trustee ("Trustee").
On October 12, 2016, the Court granted the Motion of the United States Trustee to dismiss the Debtor’s case with a re-filing bar, thereby dismissing the Debtor’s case (the "Dismissal Order")
The Debtor subsequently appealed the dismissal of the case to the Bankruptcy Appellate Panel (the "BAP"). On August 10, 2017, the BAP affirmed the order of this Court dismissing the Debtor’s case as a bad faith filing.
On February 1, 2018, the Debtor filed a Motion to Vacate the Dismissal Order (the "Motion"). On February 5, 2018, the Trustee filed comments recommending that the Court deny the Debtor’s Motion.
Under FRBP 9024 (incorporating FRCP 60(b)), a court may relieve a party from judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct; (4) a
1:00 PM
void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief from operation of judgment. FRBP 9024.
The Debtor does not specify under which subsection of Rule 60(b) she is moving. However, the allegations in the Motion appear to indicate that the Debtor believes fraud has occurred as to "alleged creditors" Wells Fargo Bank and Clear Recon Corp. Fraud falls within Rule 60(b)(3). Potentially, the Debtor is also alleging that relief is justified based on new evidence discovered during the appeal process which would fall under Rule 60(b)(2). (Motion at ¶5).
As a threshold matter, pursuant to Rule 60(c), a motion under Rule 60(b) that is brought for reasons (1), (2), or (3) cannot be brought more than a year after the entry of the order. FRCP 60(c). Here, more than one year has elapsed since the Dismissal Order was entered on October 12, 2016. Therefore, based on the allegations in the Motion, 60(b)(6) appears to be the only grounds upon which the Dismissal Order could be set aside.
The Ninth Circuit has held that Rule 60(b)(6) should be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment. In re International Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007) (internal citations omitted). Accordingly, a party who moves for such relief "must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with ... the action in a proper fashion. Id.
Here, the Debtor has failed to either (1) demonstrate manifest injustice, or (2) to demonstrate what extraordinary circumstances prevented her from bringing this Motion at an earlier junction. Instead, the timing of the instant Motion appears more likely to reflect the Debtor’s refusal to accept the ruling of the BAP which affirmed this Court’s Dismissal Order. Further, as pointed out by the Trustee, the Debtor’s Motion fails to address the numerous grounds for dismissal delineated in the Court’s Dismissal Order, including the lack of disposable income to fund a chapter 13 plan and the Debtor’s history of skeletal filings. Finally, the Debtor believes she should have an opportunity to object to proofs of claim filed in her dismissed case. However, there is no explanation or averment as to how a proof of claim filed in a dismissed case has caused or is causing injury to the Debtor.
1:00 PM
In sum, while the Debtor believes she has meritorious grounds for alleging fraud against the "alleged creditors", the Motion fails to demonstrate that the bankruptcy court is the appropriate forum for the Debtor to litigate these disputes with the creditors given that the Debtor’s case has been dismissed and that no evidence has been provided to warrant reinstating the bankruptcy case.
Separately, the Motion appears to seek the issuance of a temporary restraining order. However, LBR 7065 clearly states that a temporary restraining order or preliminary injunction may only be sought as a provision remedy in an adversary proceeding.
In addition to the foregoing, the Court also denies the Motion on the basis of improper service because the Debtor has failed to serve the Motion in accordance with FRBP 7004 as to the alleged creditors.
Based on the foregoing, the Motion is DENIED in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Conchita C Ang Pro Se
Movant(s):
Conchita C Ang Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
Docket 0
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By
2:00 PM
Trustee(s):
Michael J Hemming
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 70
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Imelda Tapia Represented By
Anthony Wilaras
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark S Krause
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US ROF II/BANK NATIONAL ASSOC
From: 1/23/18 EH
Docket 44
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears and adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Catalina Smith Represented By Luis G Torres
Movant(s):
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees Alexander K Lee Jamie D Hanawalt
10:00 AM
Trustee(s):
Armin M Kolenovic
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: REGIONAL ACCEPTANCE CORPORATION
EH
Docket 69
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Bennea Cynthia Travis Represented By Nicholas M Wajda
Movant(s):
REGIONAL ACCEPTANCE Represented By
Michael D Vanlochem
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
From: 1/23/18 EH
Docket 50
Service is Proper Opposition: Yes
Movant to confirm that Debtors have cured arrears. APPEARANCES REQUIRED.
Debtor(s):
Michael Douglas Guerino Represented By Joseph M Hoats
Joint Debtor(s):
Xochitl Rodriguez Guerino Represented By Joseph M Hoats
Movant(s):
The Bank of New York Mellon FKA Represented By
Mark D Estle
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 30
- NONE LISTED -
Debtor(s):
Graciela N Pedroza Represented By Paul Y Lee
Movant(s):
U.S. Bank National Association, as Represented By
Aaron R Anglin Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BALBOA THRIFT & LOAN
EH
Docket 140
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Movant(s):
Balboa Thrift & Loan Represented By Keith E Herron
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: REVERSE MORTGAGE SOLUTIONS, INC
EH
Docket 34
Service is Proper Opposition: Yes
Subject to discussion regarding Debtor’s late opposition, based on failure to pay real property taxes accruing postpetition on reverse mortgage, the Court is inclined to GRANT relief from stay pursuant to § 362(d)(1), GRANT waiver of Rule 4001(a)(3) stay, GRANT requests under ¶¶ 2 and 3.
APPEARANCES REQUIRED.
Debtor(s):
Ingeborg Margarete Preisendanz Represented By
Danny K Agai
Movant(s):
Reverse Mortgage Solutions Inc Represented By Madison C Wilson Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
From: 1/9/18 EH
Docket 31
Service is Proper Opposition: Limited
Parties to provide status of adequate protection discussions, and Debtors to explain why evidence that they are current was not attached to motion.
APPEARANCES REQUIRED.
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Movant(s):
WELLS FARGO BANK, N.A. Represented By
10:00 AM
Trustee(s):
Brandye N Foreman John Tamburo
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
From: 1/9/18, 1/23/18 EH
Docket 24
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from the § 1301(a) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HARLEY-DAVIDSON CREDIT CORP
EH
Docket 48
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Luis Fernando Montoya Jr. Represented By Anthony B Vigil
Movant(s):
Harley-Davidson Credit Corp as Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JAMES TANGLER
Also #12 EH
Docket 25
- NONE LISTED -
Debtor(s):
Fernando Macias Perez Represented By Edgar P Lombera
Movant(s):
James Tangler Represented By Neil B Katz
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WESTLAKE FINANCIAL SERVICES
Also #11 EH
Docket 28
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Fernando Macias Perez Represented By Edgar P Lombera
Movant(s):
Westlake Financial Services Represented By Jamie D Hanawalt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BMW FINANCIAL SERVICES NA LLC
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shawn M Orms Represented By Neil R Hedtke
Joint Debtor(s):
Karishea Tranell Jones Represented By Neil R Hedtke
Movant(s):
BMW Financial Services NA, LLC Represented By
Bret D. Allen
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: JS MCA HUNTER PARK LP
CASE DISMISSED 1/9/18
From: 1/23/18 EH
Docket 15
Service is Improper Opposition: None
Pursuant to Local Rule 4001-1(c)(1)(C), motions for relief from the automatic stay must be served on the debtor. Here, Movant did not serve the motion on Debtor.
Therefore, the Court is inclined to CONTINUE the hearing to February 27, 2018 at 10:00 a.m. for Movant to file and serve the motion and notice of continued hearing and opportunity to object on Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Antonio Ochoa Represented By
10:00 AM
Movant(s):
Qais Zafari
JS MCA Hunter Park LP Represented By Nicholas Firetag
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTIAGO AND SHALLEE ANONICAL
EH
Docket 13
Prior to the instant case, Debtor most recent bankruptcy case (16-10269) was dismissed on November 17, 2016. 11 U.S.C. § 362(c)(3) only applies if the debtor had a case pending in the previous year. A case that has been dismissed but has not yet been administratively closed is not pending. See, e.g., In re Moore, 337 B.R. 79,
80-81 (Bankr. E.D.N.C. 2005). The instant case was filed on January 31, 2018. Therefore, the Court will DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Movant(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
10:00 AM
Todd L Turoci
Shallee V Anonical Represented By Todd L Turoci Todd L Turoci Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THERESA SUSANNE YSIANO
EH
Docket 7
The Court has reviewed the motion and good cause appearing, the Court is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Theresa Susanne Ysiano Represented By William J Howell
Movant(s):
Theresa Susanne Ysiano Represented By William J Howell
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: FRANCISCO JAVIER MARTINEZ
EH
Docket 21
The Court has reviewed the motion and good cause appearing, the Court is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Movant(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: 2017-1 IH BORROWER L.P.
EH
Docket 8
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Bobby Joe Jackson Jr Pro Se
Movant(s):
2017-1 IH BORROWER L.P. Represented By Scott Andrews
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: EDGARDO ARANDA AND KELLEY ARANDA
EH
Docket 13
The Court is inclined to DENY the motion. The Court finds that Debtors have not provided clear and convincing evidence sufficient to rebut the presumption arising under § 362(c)(3)(C) that this case was not filed in good faith. Specifically, the motion does not address the reasons the previous case was dismissed. Instead the motion and Debtor’s declaration repeatedly recite that the Debtors are willing and able to make their plan payment without any specificity or detail being provided.
APPEARANCES REQUIRED. Paul Lee to personally appear.
Debtor(s):
Edgardo Aranda Represented By Paul Y Lee
Joint Debtor(s):
Kelley Aranda Represented By Paul Y Lee
Movant(s):
Edgardo Aranda Represented By Paul Y Lee
10:00 AM
Paul Y Lee
Kelley Aranda Represented By Paul Y Lee Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DINESH PATEL, AUTHORIZED AGENT OF ECONO LODGE INN & SUITES IN RIVERSIDE CA
EH
Docket 12
APPEARANCES REQUIRED.
Debtor(s):
Tena Renee Fry Pro Se
Movant(s):
Dinesh Patel Represented By
Benjamin R Heston
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:17-01286 ASR Constructors Inc a California Corporation et a v. Gotte Electric, Inc. et
Trico-Savi Business Park L.P. - DISMISSED 12/28/17
Western Alliance Bank, dba Torrey Pines Bank - Dismissed 2/1/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Defendant(s):
Gotte Electric, Inc. Pro Se Insurance Company Of The West Represented By
Jennifer Leland
David B Shemano Howard J Weg
Employment Development Represented By
2:00 PM
Elisa B Wolfe-Donato
Angela Denise McKnight Pro Se
Steven Schonder Pro Se
United states of america Represented By Charles Parker
Carlin Law Group APC Represented By Kevin R Carlin
Ledcor Construction, Inc., a Represented By Daniel P Scholz
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18
Also #22 & #23 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18
Also #21 & #23 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18
Also #21 & #22 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
Also #25 EH
Docket 141
On February 13, 2017, Rio Rancho Super Mall LLC ("Debtor") filed a Chapter 11 voluntary petition. On June 13, 2017, Debtor filed its disclosure statement and Chapter 11 plan. The disclosure statement was amended once but has not been approved. On July 24, 2017, Debtor filed a motion to set property value. After an evidentiary hearing, the Court valued the real property, located at 25211 Sunnymead Blvd., Moreno Valley, CA at $13.5 million, a far higher valuation than Debtor’s proposed $7 million.
On January 30, 2018, Debtor filed a motion to dismiss its Chapter 11 case. On February 12, 2018, UST filed a limited opposition, arguing that Debtor should be required to pay its UST quarterly fees and that a six month re-filing bar should be imposed.
2:00 PM
11 U.S.C. § 1112(b)(1) states:
Except as provided in paragraph (2) and subsection (c), on request of a party I interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(4) provides a non-exclusive list of sixteen examples of cause – most of which are more appropriately considered when the moving party is an entity other than the debtor.
Here, Debtor’s Chapter 11 case has been pending for more than one year and Debtor has been unable to get its disclosure statement approved. Debtor now asserts that effectuation of a Chapter 11 plan is unrealistic and no creditors have filed a Chapter 11 plan or opposed this motion. Therefore, the Court finds there is cause to dismiss or convert the case under § 1112(b). Because Debtor does not have any meaningful unencumbered assets, the Court finds that dismissal is in the best interests of creditors.
UST requires that any dismissal order be conditioned on payment of the UST’s quarterly fees under 28 U.S.C. § 1930(a)(6). For the reasons set forth in In re Rose, 86
B.R. 439 (Bankr. E.D. Pa. 1988) the Court finds UST’s request to be appropriate.
UST also requests that the Court impose a six-month refiling bar. The Court finds such a bar to be inappropriate here because there are no indications of any bad faith on the part of Debtor. Indeed, Debtor’s inability to successfully confirm a plan in this case was largely driven by the adjudication following an evidentiary hearing on
2:00 PM
Debtor’s motion to value real property. Furthermore, the Court notes that UST references § 349 in support of its request for a re-filing bar. Section 349 states, in relevant part: "nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title." Section 109(g), however, is only applicable to individuals or family farmers, and, as such, the legal authority for such a request is, at best, unclear.
The Court is inclined to GRANT the motion and DISMISS the case conditioned on the payment of any outstanding UST fees. Debtor to file a declaration attesting to the fulfillment of this condition prior to lodging the dismissal order.
APPEARANCES REQUIRED.
Debtor(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
Movant(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
2:00 PM
From: 3/28/17, 5/30/17, 7/25/17, 8/22/17, 10/18/17, 12/4/17, 1/22/18
Also #24 EH
Docket 6
- NONE LISTED -
Debtor(s):
Rio Rancho Super Mall LLC Represented By Christopher J Langley Steven P Chang
2:00 PM
Also #27 EH
Docket 82
PROCEDURAL BACKGROUND
On August 25, 2017, Rick’s Patio, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On October 10, 2017, the Court entered an interim order approving use of cash collateral. On October 13, 2017, the Court entered an OSC why the case should not be dismissed and Debtor’s counsel sanctioned for using cash collateral without a court order or the consent of the secured creditor. On October 18, 2017, the Court authorized the employment of Rosenstein and Associates as counsel for Debtor. On November 15, 2017, the Court sanctioned Robert Rosenstein in the amount of $500.
On December 26, 2017, Debtor filed its disclosure statement and Chapter 11 plan.1 Two days later, Debtor filed a motion for an extension of time to have plan of reorganization confirmed. Debtor’s request for an extension was granted on January 30, 2018, but Debtor never uploaded an order on the matter. The Court held a hearing on Debtor’s disclosure statement on February 13, 2018, and continued the matter for two weeks. On February 20, 2018, the Court entered an order approving a stipulation between Debtor and First Home Bank regarding cash collateral. Later that day, Debtor filed an amended disclosure statement and Chapter 11 plan.
2:00 PM
FACTUAL BACKGROUND
Debtor is a California corporation engaged in the business of selling spas and supplies. Debtor operates from a leased location in Corona, California. Debtor moved to its present location in 2014; the Corona location is much larger and more expensive than the previous location in Moreno Valley.
Debtor states that, around the time of its move to Corona, a recession in the economy and a delay in freeway construction combined to slow down sales. The decline in sales combined with increased rent caused Debtor to seek a loan from First Home Bank.
When sales did not quickly stabilize, however, Debtor opted to take additional loans to cover the loan to First Home Bank and became stuck in a "escalating cycle of debts." [Dkt. No. 109, pg. 3, lines 13-14]. Debtor subsequently filed bankruptcy.
DEADLINES
11 U.S.C. § 1129(e) states:
In a small business case, the court shall confirm a plan that complies with the applicable provisions of this title and that is filed in accordance with section 1121(e) not later than 45 days after the plan is filed unless the time for confirmation is extended in accordance with section 1121(e)(3).
11 U.S.C. § 1121(e)(3) provides three requirements which must be satisfied for the § 1129(e) deadline to be extended. The third provision requires that "the order extending time is signed before the existing deadline has expired." Here, the existing deadline to confirm Debtor’s Chapter 11 plan was February 11, 2018, and Debtor did
2:00 PM
not upload an order prior to that deadline. Therefore, Debtor is precluded from seeking an extension of the existing deadline.
Pursuant to § 1112(b)(4)(J), failure to confirm a plan within the time allowed by the applicable deadlines is cause for dismissal or conversion to Chapter 7. See, e.g., In re Roots Rents, Inc., 420 B.R. 28, 37 (Bankr. D. Idaho 2009) (failure to confirm plan or obtain extension warrants dismissal of case). Generally, an amended plan relates back to the filing of an earlier plan, and, as a result, a small business Chapter 11 debtor cannot circumvent the applicable deadlines by simply amending the plan and generating new deadlines. See, e.g., In re Star Ambulance Serv., LLC, 540 B.R. 251, 258-59 (Bankr. S.D. Tex. 2015) (deadline calculated from original filing; analyzing relation back standard). Therefore, on the request of a party in interest, the Court would be compelled to dismiss or convert Debtor’s case.
DISCLOSURE STATEMENT
In addition to the disclosure statement, the following exhibits are included, in addition to a declaration of Debtor’s Vice President, Richard Colosimo: (1) historical sales spreadsheet (Exhibit 1); (2) internet articles (Exhibit 2); (3) cash flow projections
(Exhibit 3); and (4) the amended Chapter 11 plan.
While the disclosure statement generally adheres to the standard small business disclosure statement form, as noted in section IV, infra, there are certain deficiencies related to the specific facts here.
The Chapter 11 Plan’s proposed effective date is ninety days after the entry of the confirmation order. There are four classes of claims and two categories of unclassified claims:
Class 1: Wells Fargo Commercial Distribution Finance, LLC -- $551,794.95
2:00 PM
claim, apparently secured by blanket lien on all of Debtor’s assets. To be paid in full at $5k-$20k/week until the claim has been paid in full (approximately two years). Debtor states that this class is unimpaired.
Class 2: FirsT Home Bank -- $257,858.19 claim, apparently secured by blanket lien on all of Debtor’s assets. To be paid at $3,402/month for approximately seven years. Debtor states that this class is unimpaired.
Class 3: General Unsecured Creditors -- Debtor has divided the general unsecured claims into six subclasses with each subclass holding one claim. Nevertheless, the subclasses have the exact same treatment: payment in full within six years. None of the subclasses identify the amount of the claim or the payment. Debtor also includes a provision that states the general unsecured creditors will receive at least $15k/month.
Class 4: Equity Interests – will not be affected and class is unimpaired,
Type 1: Rosenstein’s fees ($30k) – paid in full on effective date
Type 2: Accounting fees – estimated at $5,000, paid in full on effective date.
Type 3: Priority tax claims – Debtor is subject to an audit by the California State Board of Equalization but disputes that it has any liability. If liability exists, claim will be paid in approximately equal monthly payments over four years.
LEGAL ANALYSIS
A. Adequate Information
A Chapter 11 disclosure statement is required to contain "adequate information" pursuant to 11 U.S.C. § 1125(b). Section 1125(f)(2) provides that: "the court may approve a disclosure statement submitted on standard forms approved by the court or
2:00 PM
adopted under section 2075 of title 28." The United States Courts have devised a disclosure statement template for small businesses, Form B25B, which Debtor generally adopted as to format.
As to the substance of a disclosure statement, 11 U.S.C. § 1125(a)(1) defines "adequate information" as:
information of a kind, and in sufficient detail as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records, including a discussion of the potential material Federal tax consequences of the plan to the debtor, any successor to the debtor, and a hypothetical investor typical of the holders of claims or interests in the case, that would enable such a hypothetical investor of the relevant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information
The type of information required varies with the circumstances. See, e.g., In re Jeppson, 66 B.R. 269, 292 (Bankr. D. Utah 1986) (listing nineteen categories of information commonly required); see also In re Malek, 35 B.R. 443, 443-44 (Bankr.
E.D. Mich. 1983) (listing minimum requirements).
While the amended disclosure statement is improved in the description of the financial status of Debtor and the claims against the estate, the disclosure statement is still incomplete in several respects, including the following:
-First, Debtor’s description of the primary claims and their proposed treatment under the proposed plan is incomplete. Specifically, Debtor indicates that it will pay Class 1
$5,000-$20,000 per week with no explanation how the exact amount is to be
2:00 PM
calculated. Next, the description of the claims in Class 3, the general unsecured claims, is even vaguer. The plan provides that each of these claims will be paid in full with interest at the federal judgment over six years. Debtor does not identify, however, the amount of these claims, the monthly payment required, or an applicable interest rate. Debtor does provide claim amounts for the general unsecured claims in its liquidation analysis. It is unclear whether these amounts are reliable, however, given that Debtor lists an amount for "Class 3" (no sub class) when no such claim exists.
Debtor has added a "payment provision section" which states that general unsecured claims are going to receive at least $15,000/month. It is unclear how this amount would be distributed within the class, however, and if only minimum payments were made every month, the claims would not be paid in full.
-Second, Debtor’s description of the overall financial condition of the business lacks sufficient detail. The "risk factor" section of the disclosure statement is simply not helpful. Debtor has added two exhibits, historical sales and cash flow projections, which provide details regarding Debtor’s business operations. Debtor’s cash flow projection assumes an increase in sales and indicates that Debtor will easily be able to satisfy its plan obligations. Nevertheless, to this point, the projections do not appear to contain an expense for Class 3, and some months do not appear to allow for funds to pay Class 3. Debtor’s historical figures do not include expenses and so the Court (or an investor) is unable to ascertain the reasonableness of the predicted expenses.
-Third, the credibility of Debtor’s projections is at issue. Specifically, Debtor’s projections do not seem to reconcile with the small business operating reports filed with the Court. For instance, Debtor’s cash flow projection indicates income of approximately $168k and expenses of approximately $181k for January 2018. The small business operating report, however, indicates income of approximately $215k and expenses of approximately $217k. Debtor’s historical figures do not include expenses so the Court is unable to engage in a comparison outside of January 2018. Regarding income, however, the Court notes that the figures provided for October to December 2017 are substantially different in the small business operating reports than in the historical sales attached to the disclosure statement. The Court also notes that in those three months, Debtor was operating at an approximately $10,000 loss/month, so it is unclear if the expense figures provided are reasonable, or, if they are, whether the plan is feasible.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
Movant(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
From: 9/26/17, 11/14/17, 2/13/18 Also #26
EH
Docket 8
- NONE LISTED -
Debtor(s):
Ricks Patio, Inc Represented By
Robert B Rosenstein
11:00 AM
Docket 72
02/28/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $4,750 |
Trustee Expenses: | $77.98 |
Attorney Fees: | $15,506.20 |
Attorney Costs: | $78.70 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED.
Debtor(s):
David K Fishbeck Represented By Stephen H Darrow
Trustee(s):
11:00 AM
Karl T Anderson (TR) Represented By Hydee J Riggs
11:00 AM
Docket 42
02/28/2018
No opposition has been filed. Service was Proper.
The Trustee Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 1,976.01 Trustee Expenses: $ 226.01
The trustee may submit on the tentative.
APPEARANCES WAIVED.
Debtor(s):
Ricardo Enciso Represented By Speros P Maniates
Joint Debtor(s):
Sonia Gamez Represented By
Speros P Maniates
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
From: 11/29/17, 1/24/18 EH
Docket 45
02/28/2018
Creditor Nellessen having filed non-opposition to the Motion, the Court is inclined to GRANT the Motion avoiding the lien of Nellessen. The Court makes no finding as to value.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
The Court is inclined to allow the parties the opportunity to obtain appraisals or other valuations of the subject property.
Alternatively, Debtor’s evidence of the amount of the lien of Wells Fargo refers to the balance as of the filing of the motion. While Debtor is free to brief the appropriate time for determining the amount of a lien, in the absence of any argument on the issue, the Court concludes that the appropriate date is the petition date.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Movant(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
11:00 AM
EH
Docket 83
02/28/2018
On May 16, 2016 ("Petition Date"), Jina Soo Choi ("Debtor") filed her petition for chapter 13 relief. On August 4, 2016, the case was converted to a case under chapter 7. On January 6, 2017, the Debtor moved the Court for an order dismissing her case. The case was dismissed on March 6, 2017.
On March 10, 2017, the Office of the United States Trustee ("UST") filed its Motion of United States Trustee For An Order Disgorging Fees, Assessing Damages, And Imposing Fines And Against Bankruptcy Petition Preparer Sandra Cooper ("Cooper") Pursuant to 11 U.S.C. § 110 ("First Motion"). The Motion was amended on March 29, 2017.
On September 6, 2017, the Court granted the First Motion and ordered Cooper to (1) disgorge $2,000, (2) to pay $2,000 in damages to the Debtor, (3) pay $21,000 in fines to the UST. (Docket No. 80)(the "Prior Order"). Additionally, the Prior Order required Cooper to file a declaration attesting to her compliance with the Order within 45 days of its entry. No declaration was ever filed.
On January 23, 2018, the UST filed its Motion to Fine and Enjoin Bankruptcy Petition Preparer Sandra Cooper ("Motion").
DISCUSSION
The Motion seeks an order enjoining Cooper from engaging in any petition
11:00 AM
preparer services, whether directly or indirectly in any manner and fining Cooper an additional $500 for her failure to comply with the Court’s Prior Order.
Section 110(j)(3) provides that "[t]he court, as part of its contempt power, may enjoin a bankruptcy petition preparer that has failed to comply with a previous order issued under this section. The injunction under this paragraph may be issued on the motion of the court, the trustee, or the United States trustee (or the bankruptcy administrator, if any)." 11 U.S.C. § 110(j)(3).
Here, the UST has provided multiple notices to Cooper her advising her of the Prior Order and of her duties in connection with that order. Notwithstanding such notice, Cooper has failed to file the required declaration, and has failed to respond or file opposition to the instant Motion. Based on the foregoing, the Court is inclined to GRANT the UST’s request for an injunction.
Finally, as indicated by the UST, § 110(h)(5) authorizes an additional $500 fine for each failure to comply with a court order to turn over funds. Cooper’s failure to comply with the Prior Order warrants the imposition of the additional $500 fine.
TENTATIVE RULING
Based on the foregoing, the tentative ruling is to GRANT the Motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Jina Soo Choi Represented By
Nicholas S Nassif
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani Everett L Green
11:00 AM
Trustee(s):
Abram Feuerstein esq
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
Docket 41
On March 9, 2017 ("Petition Date"), David and Carol Norwood (collectively, "Debtors") filed for chapter 7 relief. Karl Anderson is the duly appointed chapter 7 trustee ("Trustee"). On January 29, 2018, Trustee filed Objection to Claims # 2 of First National Bank of Omaha ("Claimant").
Service was proper and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who
11:00 AM
must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Trustee objects that the Claim does not meet the requirements of FRBP 3001(c)(3). In support, the Trustee argues that he requested information necessary for Claimant to comply with FRBP 3001 and did not receive an adequate response.
Specifically, the Trustee requested the information regarding the date of the last transaction, the date of the last payment on the account, and the date on which the account was charged to profit and loss. (Obj. at 8). The Objection does not otherwise contest the amount of the claim or assert any state law defense against the claim.
Trustee Objection fails to distinguish the Ninth Circuit BAP decision in In re Campbell which clarified the holding of In re Heath, that a claim objection that does not actually contest the debtor's liability or the amount of the debt is not enough to
11:00 AM
disallow a proof of claim, even if the proof of claim lacks the documentation required by Rule 3001(c). In re Campbell, 336 B.R. 430, 434 (9th Cir. BAP 2005)(citing In re Heath, 331 B.R. 424 (9th Cir. BAP 2005)). Campbell explained the following reasons supporting its holding:
that under Section 502 the grounds for objection to claims do not include a lack of compliance with Rule 3001(c); that the procedure for claims allowance or disallowance is designed to be speedy and inexpensive; that Section 502(a) deems claims allowed; that Debtors cannot overcome that presumption by filing objections that do not actually dispute the liability or amount of the claim; and that nothing in this statutory scheme violates due process or equitable principles.
Campbell at 434-435. See also In re Brunson, 486 B.R. 759, 770 (Bankr. N.D. Tex. 2013) (discussing amendment of FRBP 3001 to provide courts with the ability to sanction creditors for noncompliance with FRBP 3001, without, however providing for disallowance of claims).
The Court notes that parties seeking disallowance for failure of a creditor to comply with Rule 3001 could alternatively object as to the liability where the sworn schedules do not identify the name of the claimant or the amount of the claim.
Here, notwithstanding the infirmities identified in the Objection, under the circumstances of the facts presented here, the Court is inclined to order as follows:
The Objection is SUSTAINED;
The Claimaint shall have 45 days to file an amended claim;
Failure by Claimant to file an amended claim with supporting documentation in compliance with FRBP 3001 shall be deemed as the Claimant’s consent to the disallowance of the Claim.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
David Leroy Norwood Represented By Jenny L Doling
Joint Debtor(s):
Carol Ann Norwood Represented By Jenny L Doling
Movant(s):
Karl T Anderson (TR) Represented By Brandon J Iskander Leonard M Shulman
Trustee(s):
Karl T Anderson (TR) Represented By Brandon J Iskander Leonard M Shulman
11:00 AM
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
(Holding Date)
From: 9/27/17, 1/24/18 EH
Docket 29
On July 12, 2017, an involuntary Chapter 7 petition was filed against Integrated Wealth Management, Inc. ("Debtor"). After an extension of the applicable deadline, Debtor filed its answer on September 12, 2017.
Prior to the answer being filed, One El Paseo North, LLC ("Landlord") filed a motion for immediate payment of its gap rent claim pursuant to § 502(f). Landlord asserts that it holds a gap rent claim totaling $27,776.73, covering the time period between the filing of the involuntary petition, on July 12, 2017, and the time Debtor abandoned the premises, on August 18, 2017.
11:00 AM
11 U.S.C. § 502(f) states:
(f) In an involuntary case, a claim arising in the ordinary course of the debtor’s business or financial affairs after the commencement of the case but before the earlier of the appointment of the appointment of a trustee and the order for relief shall be determined as of the date such claim arises, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection
(d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.
While Landlord is correct that the Bankruptcy Code allows payment of ordinary course business claims that accrue during the gap period, it is unclear what the legal justification is for Landlord’s request that the Court order the gap claim to be paid immediately. 11 U.S.C. § 507(a)(3) specifically affords debts incurred pursuant to § 502(f) third-priority status. If the estate is administratively insolvent, or does not have funds to pay all first, second, and third-priority claims, then Landlord would not receive full payment of its claim. Because Landlord may not receive full payment of its claim, it would be inappropriate to order immediate payment of its claim.
Debtor further objects to the issuance of an order allowing Landlord’s claim, asserting that a motion to allow a claim for an unpaid § 502(f) claim is procedurally improper. The Court disagrees with Debtor’s contention that a party cannot seek allowance of an administrative claim separate from filing a proof of claim. As an order for relief has not yet been entered, however, the relief requested is premature, since, among other things, a Chapter 7 trustee has not had the opportunity to vet the request. As an aside, the Court notes that Landlord has filed a proof of claim, but it did not request administrative priority.
11:00 AM
The Court will DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera
Movant(s):
One El Paseo North, LLC Represented By Thomas J Polis
11:00 AM
From: 2/7/18 EH
Docket 16
02/28/2018
Debtors have filed a supplemental declaration in support of the valuation of the Vehicle. The Court, finding the evidence sufficient for purposes of redemption under section 722, is inclined to GRANT the Motion.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
02/07/2018
On November 28, 2017, Randall and Amber Hoover (collectively, the "Debtors") filed their petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the Debtors’ estate is a 2010 Toyota Prius (the "Vehicle").
On December 11, 2017, the Debtors filed their motion to redeem a the Vehicle, which is secured by the lien of Gateway One Lending ("Gateway"). The Debtors assert that the value of the Vehicle is no more than $6,848. The Debtors believe the debt owed on the Vehicle is a dischargeable consumer debt and that the Vehicle has either been exempted or abandoned by the estate.
Service was proper and no opposition has been filed.
11:00 AM
The Debtors seek to redeem the Vehicle pursuant to FRBP 6008 and 11 U.S.C.
§ 722.
Redemption in Chapter 7
An individual Chapter 7 debtor may redeem tangible personal property intended primarily for personal, family or household use from a lien securing a dischargeable consumer debt, if either (1) the property is exempt under § 522 or (2) it has been abandoned under § 554. 11 U.S.C. § 722. Redemption is made by paying the lienholder the amount of its allowed claim secured by the lien. Id.
Though a chapter 7 debtor must take certain action to preserve the automatic stay when seeking to redeem personal property secured by a lien, see 11 U.S.C. §§ 362(h), 521(a)(2), & 521(a)(6), there is no deadline impacting a debtor’s substantive right to redeem (even after a discharge has been entered). In re Rodgers, 273 B.R. 186, 191 (Bankr. C.D. Ill. 2002); In re Cassar, 139 B.R. 253, 254 (Bankr. D. Colo. 1992). Rather, redemption under § 722 requires that a debtor demonstrate only the following: (1) both the property subject to the lien and the underlying debt must be consumer-related; (2) the debt secured by the lien must be dischargeable in bankruptcy; (3) the property must either be exempted under § 522 or abandoned under
§ 554; and (4) the debtor must pay the lien holder the amount of the allowed secured claim. In re Jewell, 232 B.R. 904, 906 (Bankr. E.D. Tex. 1999). If the debtor fails to satisfy any of these requirements the motion shall be denied. Id.
In support of the Motion, the Debtors have provided no evidence to support the Motion. There is no declaration submitted by the Debtors attesting to the value of the Vehicle. Moreover, Schedule C appears to indicate that the Debtors did not exempt the Vehicle under §522 (however, given that the Trustee has issued a Report
11:00 AM
of No Distribution and that no opposition or response has been filed by Gateway, the Court is inclined to find that the Trustee’s No Asset Report is sufficient to indicate abandonment under the circumstances of the instant case).
For the foregoing reasons, the tentative ruling is to CONTINUE the hearing on the Motion to February 28, 2018, at 11:00 a.m. for Debtors to provide evidence in support of the Motion.
APPEARANCES WAIVED. Debtors are directed to file and serve notice of the continuance.
Debtor(s):
Randall Lee Hoover Jr. Represented By John A Varley Lennie A Alzate
Joint Debtor(s):
Amber LaRie Hoover Represented By John A Varley Lennie A Alzate
Movant(s):
Randall Lee Hoover Jr. Represented By John A Varley Lennie A Alzate
Amber LaRie Hoover Represented By John A Varley John A Varley Lennie A Alzate Lennie A Alzate
11:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
U.S.C. 503(b)(1) filed by Creditor NATIONAL WOOD PRODUCTS, INC.) Amended Motion of National Wood Products, Inc. for Allowance of Administrative Expense Claim Pursuant to 11 U.S.C. 503(b)(1) & 11 U.S.C. 503(b)(9) (1) & 11 U.S.C. 503(b)(9) # 2 Proposed Order Amended Order After Hearing Approving National Wood Products, Inc.'s Amended Motion for Order Allowing an Administrative Expense Claim)
EH
Docket 162
02/28/2017
Based on the Trustee's nonopposition and finding good cause for allowance of Movant's claim, the Court is inclined to GRANT the Motion allowing Movant's claim as an administrative expense claim under section 503(b)(1)(A).
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Best Best & Krieger Caroline Djang
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17
EH
Docket 1
02/28/2018
This hearing is vacated. The Status Conference is CONTINUED to March 21, 2018, at 2:00 p.m. The Court has provided notice to the parties of the continuance.
APPEARANCES WAIVED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Plaintiff(s):
Charles Edward Schrader Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 11/26/14, 1/26/15, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 1/27/16, 6/29/16, 9/28/16, 11/16/16, 2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 7/31/17, 10/4/17,
1/3/18
EH
Docket 1
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
2:00 PM
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01287 Cisneros v. Diaz
M. Cisneros against Jose L Diaz. (Charge To Estate). - Complaint: (1) for Declaratory Relief; (2) Turnover of Property; and (3) Sale of Interest of Co- Owner in Property of the Estate [11 U.S.C. §§ 363 542] - Nature of Suit: (91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)),(31 (Approval of sale of property of estate and of a co-owner - 363(h))) (Friedman, Anthony)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Beatrice A Diaz Pro Se
Defendant(s):
Jose L Diaz Pro Se
Plaintiff(s):
Arturo M. Cisneros Represented By Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
2:00 PM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
Trustee(s):
Charles W Daff (TR) Represented By
2:00 PM
Lynda T Bui Brandon J Iskander
2:00 PM
HOLDING DATE
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17
EH
Docket 44
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
Also #15 & #16 EH
Docket 0
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas
2:00 PM
Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
From: 8/31/17, 9/14/17, 11/9/17, 12/20/17
Also #14 & #16 EH
Docket 26
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By
2:00 PM
Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
(Holding Date)
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17
Also #14 & #15 EH
Docket 13
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
2:00 PM
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 83
BACKGROUND
On May 5, 2014, Alex Soto ("Debtor") filed a Chapter 13 voluntary petition. On September 7, 2017, Debtor’s Chapter 13 plan was confirmed.
On October 25, 2017, Trustee filed a motion to dismiss for delinquency. On November 17, 2017, Debtor filed her opposition and a request for hearing. On December 14, 2017, after a hearing, the case was dismissed.
On January 23, 2018, Debtor filed a motion to vacate dismissal stating she now has enough funds to cure the delinquency.
DISCUSSION
Debtor relies on Fed. R. Civ. P. Rule 60(b)(1), incorporated into bankruptcy proceedings by Fed. R. Bankr. P. Rule 9024, which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect." Here, Debtor appears
12:30 PM
to assert that he attempted to cure the plan delinquency, as well as file a motion to the modify the plan, but miscommunication between Debtor and his attorney, combined with a delay in the posting of the plan payment, resulted in the case being dismissed. Because Debtor has provided an explanation which arguably fits within the standard of excusable neglect and because Debtor was more than three years into his plan, the Court is inclined to grant the motion conditioned on compliance with the conditions in Trustee’s comments,
TENTATIVE RULING
The Court is inclined to GRANT the motion conditioned on compliance with the Trustee’s comments.
APPEARANCES REQUIRED.
Debtor(s):
Alex Soto Represented By
Natalie A Alvarado
Movant(s):
Alex Soto Represented By
Natalie A Alvarado Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 37
APPEARANCES REQUIRED.
Debtor(s):
Richard J Sarenana Jr Represented By Cynthia A Dunning
James D. Hornbuckle
Joint Debtor(s):
Maria Sarenana Represented By Cynthia A Dunning
James D. Hornbuckle
Movant(s):
Richard J Sarenana Jr Represented By Cynthia A Dunning
James D. Hornbuckle
Maria Sarenana Represented By Cynthia A Dunning
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 33
APPEARANCES REQUIRED.
Debtor(s):
Nadia M. Lipscomb Represented By
James D. Hornbuckle
Movant(s):
Nadia M. Lipscomb Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 49
Sean Coy ("Debtor") filed three motions to avoid liens held by Morgan Hill Homeowners Association ("HOA"). HOA filed opposition to all three motions, and Debtor filed a reply to each opposition.
One motion [Dkt. No. 49] sought the avoidance of an abstract of judgment (recorder’s number 2009-0553451) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Abstract is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the abstract of judgment.
Therefore, because the abstract of judgment impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
A second motion [Dkt. No. 50] seeks the avoidance of a notice of levy (recorder’s number 2017-0290203) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Notice of Levy is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the notice of levy. Therefore, because the notice of levy impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
Finally, a third motion [amended as Dkt. No. 56] is less than clear. The motion identifies the subject lien as possessing recording number 2017-0290203, which is the
12:30 PM
recording number of the notice of levy identified above. HOA implicitly adopts the same position as was stated in the paragraph above. Additionally this motion having been brought pursuant to § 506(d) (instead of § 522(f)), the HOA argued that because its "secured" claim had not been disallowed, lien avoidance under § 506(d) was not permissible. The Court need not address this argument because this motion is redundant given the motion that is docket number 50. While Debtor’s reply indicates that its intent was to avoid a different lien, the assessment lien, through the motion that is docket number 56, the motion identified the notice of levy as the lien to be avoided. Therefore, the Court is inclined to deny this motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #4 - #8 EH
Docket 50
Sean Coy ("Debtor") filed three motions to avoid liens held by Morgan Hill Homeowners Association ("HOA"). HOA filed opposition to all three motions, and Debtor filed a reply to each opposition.
One motion [Dkt. No. 49] sought the avoidance of an abstract of judgment (recorder’s number 2009-0553451) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Abstract is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the abstract of judgment.
Therefore, because the abstract of judgment impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
A second motion [Dkt. No. 50] seeks the avoidance of a notice of levy (recorder’s number 2017-0290203) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Notice of Levy is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the notice of levy. Therefore, because the notice of levy impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
Finally, a third motion [amended as Dkt. No. 56] is less than clear. The motion
12:30 PM
identifies the subject lien as possessing recording number 2017-0290203, which is the recording number of the notice of levy identified above. HOA implicitly adopts the same position as was stated in the paragraph above. Additionally this motion having been brought pursuant to § 506(d) (instead of § 522(f)), the HOA argued that because its "secured" claim had not been disallowed, lien avoidance under § 506(d) was not permissible. The Court need not address this argument because this motion is redundant given the motion that is docket number 50. While Debtor’s reply indicates that its intent was to avoid a different lien, the assessment lien, through the motion that is docket number 56, the motion identified the notice of levy as the lien to be avoided. Therefore, the Court is inclined to deny this motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #4 - #8 EH
Docket 46
On February 28, 2005, Debtor executed two notes and deeds of trust. One had an original amount of $500,000, and the current beneficiary is FMJM RWL III Trust 2015-1. The other had an original amount of $106,280, and the current beneficiary is Deutsche Bank National Trust Company ("Deutsche"). The security interest related to the latter is the subject of the lien avoidance motion here.
Deutsche asserts that Debtor and the first lienholder entered into a modification on June 1, 2013, and that such modification prejudiced the rights of Deutsche. Deutsche contends that the modification was without its permission, and that the senior lienholder relinquished its priority with respect to the modified terms. If Deutsche is correct, then Deutsche would not be wholly unsecured and Debtor’s motion would be unsuccessful.
Subject to discussion from the parties, the Court is inclined to GRANT Deutsche’s request for a continuance to allow Deutsche to file an adversary proceeding regarding the extent or priority of a lien.
APPEARANCES REQUIRED.
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
12:30 PM
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 47
Sean Coy ("Debtor") filed three motions to avoid liens held by Morgan Hill Homeowners Association ("HOA"). HOA filed opposition to all three motions, and Debtor filed a reply to each opposition.
One motion [Dkt. No. 49] sought the avoidance of an abstract of judgment (recorder’s number 2009-0553451) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Abstract is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the abstract of judgment.
Therefore, because the abstract of judgment impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
A second motion [Dkt. No. 50] seeks the avoidance of a notice of levy (recorder’s number 2017-0290203) pursuant to § 522(f). HOA states in its opposition that "[t]o the extent that the Notice of Levy is the only lien which Debtor seeks to avoid, the Association does not object, but such avoidance would have no effect." In Debtor’s reply, Debtor clarified that the motion sought to avoid the notice of levy. Therefore, because the notice of levy impairs an exemption of the Debtor, and HOA implicitly having consented to the relief requested, the Court is inclined to grant this motion.
Finally, a third motion [amended as Dkt. No. 56] is less than clear. The motion identifies the subject lien as possessing recording number 2017-0290203, which is the
12:30 PM
recording number of the notice of levy identified above. HOA implicitly adopts the same position as was stated in the paragraph above. Additionally this motion having been brought pursuant to § 506(d) (instead of § 522(f)), the HOA argued that because its "secured" claim had not been disallowed, lien avoidance under § 506(d) was not permissible. The Court need not address this argument because this motion is redundant given the motion that is docket number 50. While Debtor’s reply indicates that its intent was to avoid a different lien, the assessment lien, through the motion that is docket number 56, the motion identified the notice of levy as the lien to be avoided. Therefore, the Court is inclined to deny this motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #4 - #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Rasmey John Lim Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Delfino Mendez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Carlos Gutierrez Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Antonio Ochoa Represented By Qais Zafari
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Juana Santiago Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Tatiana Noemi Alegre Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Heredia Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
From: 2/22/18 Also #17.2 EH
Docket 169
- NONE LISTED -
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Movant(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #17.1 EH
Docket 168
- NONE LISTED -
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 113
- NONE LISTED -
Debtor(s):
Jacob J Cannon Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Danielle M Cannon Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 54
- NONE LISTED -
Debtor(s):
Reinaldo Rodriguez Represented By Julie J Villalobos
Joint Debtor(s):
Michelle Rodriguez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 133
- NONE LISTED -
Debtor(s):
James Lange Represented By
Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Michelle Lange Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 264
- NONE LISTED -
Debtor(s):
Jose N Recinos Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Patricia Recinos Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 127
- NONE LISTED -
Debtor(s):
Jose L Rangel Represented By
Lisa H Robinson John F Brady
Joint Debtor(s):
Rosa M Rangel Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 67
- NONE LISTED -
Debtor(s):
Esmeralda Caldera Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 145
- NONE LISTED -
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 76
- NONE LISTED -
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 45
- NONE LISTED -
Debtor(s):
Sam Venero Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 41
- NONE LISTED -
Debtor(s):
John P Morris Represented By
Michael Smith Sundee M Teeple
Joint Debtor(s):
Cassandra M Morris Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Oscar Avila Represented By
Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 78
NONE LISTED -
Debtor(s):
Scott Allan Oswald Represented By Richard Lynn Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:17-01213 Winegardner Masonry, Inc. v. Salazar
Holding Date From: 12/21/18 EH
Docket 1
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Defendant(s):
Julie Lynn Salazar Represented By
Joseph C Markowitz
Plaintiff(s):
Winegardner Masonry, Inc. Represented By William A Smelko
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
From: 12/14/17, 12/21/17 EH
Docket 46
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Movant(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Julie Lynn Salazar Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Adv#: 6:09-01235 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
David Loughnot Jonathan A Loeb Jeffrey Rosenfeld
DOES 1 through 100, inclusive Pro Se
1:00 PM
Plaintiff(s):
RICHARD K. DIAMOND Represented By Richard S Berger Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten
Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
1:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
01/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By
1:00 PM
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Plaintiff(s):
RICHARD K DIAMOND Represented By Richard S Berger Peter M Bransten Michael I Gottfried
Aleksandra Zimonjic Monica Rieder Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By
1:00 PM
Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
1:00 PM
Adv#: 6:10-01329 DIAMOND v. Empire Partners, Inc., a California Corporation et
(Defendant - Empire Partners, Inc) HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld
James P Previti Represented By Jonathan A Loeb
1:00 PM
Jeffrey Rosenfeld
Previti Realty Fund, L.P. Represented By Jonathan A Loeb Jeffrey Rosenfeld
The James Previti Family Trust Represented By Jonathan A Loeb Jeffrey Rosenfeld
Plaintiff(s):
RICHARD K DIAMOND Represented By Richard S Berger Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten
Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams
1:00 PM
Thomas J Eastmond
10:00 AM
MOVANT: DIANA J. EVERETT
EH
Docket 8
03/06/2018
The Debtor indicates that the case was dismissed for two reasons: (1) the Debtor’s disability income decreased, and (2) the Debtor’s daughter was in a serious accident in November 2017 and the Debtor has been paying her medical and legal fees associated with the accident.
The Debtor’s explanation for the dismissal of the prior case is sufficiently detailed. However, the Motion does not address whether there has been a change in the financial or personal affairs of the Debtor since January 2018 (when the case was dismissed) such that the Debtor is likely to be able to complete her plan going forward. In particular, there is no indication that the medical emergency which resulted in dismissal of the Debtor’s prior case has ended. Additionally, the Debtor now indicates that she is supporting her unemployed domestic partner. The Debtor’s disposable income has decreased from $4,197.72 in her prior case to $704.72 in the current case.
Separately, the Court notes that the Notice of Motion did not specify the identities of the Debtor’s secured creditors as required by the Court’s form motion. As such, notice for the secured creditors is improper.
For these reasons, the Court is inclined to DENY the Motion. APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Diana J Everett Represented By Paul Y Lee
Movant(s):
Diana J Everett Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HARVEST GLEN LP
EH
Docket 10
03/06/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 7(b), 9(b) and 11 of the prayer for relief.
APPEARANCES REQUIRED.
Debtor(s):
Mercedes Estrada Ayala Pro Se
Movant(s):
Harvest Glen LP Represented By Scott Andrews
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: EDGARDO ARANDA AND KELLEY ARANDA
From: 2/27/18 EH
Docket 13
The Court is inclined to DENY the motion. The Court finds that Debtors have not provided clear and convincing evidence sufficient to rebut the presumption arising under § 362(c)(3)(C) that this case was not filed in good faith. Specifically, the motion does not address the reasons the previous case was dismissed. Instead the motion and Debtor’s declaration repeatedly recite that the Debtors are willing and able to make their plan payment without any specificity or detail being provided.
APPEARANCES REQUIRED. Paul Lee to personally appear.
Debtor(s):
Edgardo Aranda Represented By Paul Y Lee
Joint Debtor(s):
Kelley Aranda Represented By Paul Y Lee
10:00 AM
Movant(s):
Edgardo Aranda Represented By Paul Y Lee Paul Y Lee
Kelley Aranda Represented By Paul Y Lee Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DANNY HOWARD WEEKS
EH
Docket 6
03/06/2018
The declaration in support of the Motion establishes clear and convincing evidence that the instant case was filed in good faith for purposes of continuance of the stay under § 362(c). Based on the evidence that the Debtor’s prior case was adversely impacted by issues with his vehicle and on his assertion that he is now relying on company-provided vehicles, the Court’s tentative ruling is to GRANT the Motion and continue the automatic stay as to all creditors (with the exception of Mission Financial Services which obtained relief from stay in the prior case).
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth
Movant(s):
Danny Howard Weeks Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DINESH PATEL, AUTHORIZED AGENT OF ECONO LODGE INN & SUITES IN RIVERSIDE CA
From: 2/27/18 EH
Docket 12
APPEARANCES REQUIRED.
Debtor(s):
Tena Renee Fry Pro Se
Movant(s):
Dinesh Patel Represented By
Benjamin R Heston
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 7
03/06/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rick Allen Skans Represented By Neil R Hedtke
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA NA
EH
Docket 8
03/06/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Dionna C Bell Represented By Charles W Daff
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 10
03/06/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶¶ 3 and 12.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Marc A Mercurio Represented By Aaron Lloyd
Movant(s):
Nationstar Mortgage LLC Represented By John D Schlotter
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE, LLC
EH
Docket 31
03/06/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay and authority to offer loan workout options.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Deborah Stevenson Represented By Edward T Weber
Movant(s):
Nationstar Mortgage, LLC dba Mr. Represented By
John D Schlotter
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 31
03/06/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT authority to offer loan workout options.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rowena I Argonza Represented By Julie J Villalobos
Joint Debtor(s):
Emerald D Argonza Represented By Julie J Villalobos
Movant(s):
U.S. Bank National Association, not Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: VW CREDIT INC
EH
Docket 52
03/06/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENIED as to § 362(d)(2) for lack of evidence regarding necessity for reorganization.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Luis Fernando Montoya Jr. Represented By Anthony B Vigil
Movant(s):
VW Credit, Inc., dba Ducati Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JP MORGAN CHASE BANK NA
From: 1/9/18, 2/13/18 EH
Docket 36
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
John P Morris Represented By
Michael Smith Sundee M Teeple
Joint Debtor(s):
Cassandra M Morris Represented By Michael Smith Sundee M Teeple
Movant(s):
JPMorgan Chase Bank, N.A. Represented By
10:00 AM
Trustee(s):
Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 2/13/18 EH
Docket 23
02/13/2018
Service: Proper Opposition: Yes
Subject to discussions re adequate protection, the Court’s tentative is to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay, GRANT authority to offer loan workout options pursuant to ¶3 of prayer for relief and GRANT relief from the co-debtor stay.
APPEARANCES REQUIRED.
Debtor(s):
Warren Alan Hall Represented By Lionel E Giron
Joint Debtor(s):
Kelly Suzanne Hall Represented By
10:00 AM
Movant(s):
Lionel E Giron
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HILTON RESORTS CORPORATION
EH
Docket 22
03/06/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Darla Bell Represented By
Andrew Nguyen
Movant(s):
Hilton Resorts Corporation Represented By Thomas R Mulally
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
From: 2/6/18 EH
Docket 29
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from § 1301(a) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles M. Wallace Jr. Represented By Robert W Ripley
Joint Debtor(s):
Raquel A. Wallace Represented By Robert W Ripley
10:00 AM
Movant(s):
Wells Fargo Bank, N.A./Wells Fargo Represented By
Norman Harrison Armin M Kolenovic John Chandler
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 1/9/18, 2/6/18 EH
Docket 89
Service is Proper Opposition: Yes
Parties to provide status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Movant(s):
Deutsche Bank National Trust Represented By April Harriott Keith Labell Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18 EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Debbie Hernandez Rosemary Allen
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
2:00 PM
Requiring Status Report EH
Docket 7
NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
MOVANT: VANHOOPS HOLDINGS LP
Also #21 & #22 EH
Docket 19
On January 18, 2018, Ohlone Tribe of Carmel First Settlers of Chino Valley, CA Inc. ("Debtor") filed its petition for chapter 11 relief. The Debtor’s prior case was dismissed on January 9, 2018.
On February 2, 2018, Vanhoops Holdings, LP ("Vanhoops") filed a motion for relief from the automatic stay ("Motion") seeking authority to lift the stay as to certain property located at 15400 Highway 173 in Hesperia, CA (the "Property"). The Property is asserted to be commercial land and the Debtor asserts that the land is occupied by a small number of tenants, including the Debtor’s principal. The Debtor filed its response to the Motion on February 20, 2018.
Vanhoops seeks an order lifting the stay pursuant to 11 U.S.C. §§ 362(d)(1), (d)(2), and (d)(4) alleging:
2:00 PM
A lack of adequate protection;
Bad faith filing;
By its terms, the note is due and payable in its entirety.
In support of the Motion, Vanhoops asserts that the loan matured on January 18, 2018, and that it holds a total claim of $3,201,486.50. The Motion further indicates based on an attached declaration of the Debtor’s principal, David Vargas, that the Debtor transferred the Property to Mr. Vargas’s wife, Danielle Maria Madrigal, without notice to Vanhoops and without its consent.
In response, the Debtor asserts that the Motion is premature as it was filed early in the case and that Vanhoops has not provided evidence of the fair market value of the Property, and that the current case has been filed in good faith.
Here, Vanhoops’ Motion lacks evidence regarding whether the Debtor was making payments in accordance with the terms of the Note. Additionally, there is no evidence to support the lack of equity in the Property. However, despite the deficiencies in the Motion generally, the Court finds that the evidence that the Debtor conveyed the Property to Danielle Madrigal in direct contravention of the terms of the Note and without authorization from Vanhoops, coupled with the evidence that the Debtor filed its current and prior bankruptcies to forestall foreclosure by Vanhoops, as evidence that the instant bankruptcy filing has been made in bad faith and that the Debtor’s case is really a two party dispute between the Debtor and Vanhoops.
The Court is inclined to GRANT the Motion under §362(d)(1) and (d)(4) as a bad faith filing. The Court is further inclined to GRANT the order under ¶¶ 10(b) and 12 of the prayer for relief. The requests under ¶¶ 4 and 11 are DENIED for lack of cause shown, and the request under ¶ 13 is DENIED as moot.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Ohlone Tribe of Carmel First Settlers Represented By
Odeha L Warren
Movant(s):
Vanhoops Holdings LP Represented By Diana J Carloni
2:00 PM
#21.00 Order on the Courts own Motion Hearing re Application to Employ Odeha Warren as Attorney
Also #20 & #22
EH
Docket 0
On January 18, 2018, Ohlone Tribe of Carmel First Settlers of Chino Valley, CA Inc. ("Debtor") filed its petition for chapter 11 relief. The Debtor’s prior case was dismissed on January 9, 2018.
On February 19, 2018, the Debtor filed its Application to Employ Odeha Warren as Counsel to Debtor ("Application"). On February 21, 2018, the Court set the Application for hearing. No oppositions have been filed. On March 5, 2018, the Office of the United States Trustee filed its Objection to the Application.
The UST correctly points out that the Application was not served in accordance with LBR 2014-1 (there was no proof of service at all). Additionally,
2:00 PM
when setting the hearing, the Court ordered that the Debtor give notice of the hearing. The Debtor did not comply with the Court’s order. Finally, the UST has correctly pointed out that the Application does not include a Notice indicating to interested parties their deadline for opposition or response.
Based on the foregoing, the Court need not reach the merits of the Application. The failure to comply with the most basic LBR 2014 requirements, including Applicant’s responsibility to indicate her qualifications, warrants denial of the Application.
APPEARANCES REQUIRED.
Debtor(s):
Ohlone Tribe of Carmel First Settlers Represented By
Odeha L Warren
2:00 PM
Requiring Status Report Also #20 & #21
EH
Docket 0
- NONE LISTED -
Debtor(s):
Ohlone Tribe of Carmel First Settlers Represented By
Odeha L Warren
2:00 PM
Also #23.1 EH
Docket 170
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also #23 EH
Docket 171
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also #25 EH
Docket 135
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
From: 2/6/18, 2/13/18 Also #24
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
10:00 AM
EH
Docket 51
- NONE LISTED -
Debtor(s):
Joanne Saycon Represented By Terrence Fantauzzi
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
Also #3 EH
Docket 11
- NONE LISTED -
Debtor(s):
Stacy Aleen Eble Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
Also #2 EH
Docket 13
- NONE LISTED -
Debtor(s):
Stacy Aleen Eble Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Maria Angeles Lozano Represented By Daniel King
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Michelle Rene Katz Pro Se
Joint Debtor(s):
Michael Alan Katz Pro Se
Movant(s):
Navy Federal Credit Union #5905 Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 13
On October 20, 2017, Young Wang ("Debtor") filed a Chapter 7 voluntary petition. On January 29, 2018, Debtor received a discharge.
On February 8, 2017, Debtor filed a motion to avoid the judicial lien of Canterbury at Indian Hills HOA ("HOA"). On February 22, 2017, HOA filed its opposition, and, on February 27, 2018, Debtor filed a reply.
The crux of the dispute relates to the nature of the Debtor’s property interest. Debtor appears to assert that she has a 50% equitable interest in the property. Debtor asserts that she purchased the property with her daughter because she could not qualify for a loan, and further asserts that she lives at the property and makes mortgage payments.
HOA makes two distinct arguments in its opposition. First, HOA argues that that the lien did not attach to any interest of the Debtor, and, therefore, Debtor cannot avoid the lien. Second, HOA argues that Debtor is not entitled to take an exemption in the property. Regarding this latter argument, the Court notes that a claimed exemption is "presumptively valid." see, e.g., In re Carter, 182 F.3d 1027, 1029 n.3 (9th Cir. 1999). If HOA wants to dispute the claimed exemption of Debtor, it needs to file an
11:00 AM
objection to the claimed exemption following the procedures of FED. R. BANKR. P. Rule 4003, if the deadline to do so has not yet run.
Regarding the first argument, HOA is correct that in order to avoid a lien under § 522(f), the debtor must have had an interest in the property at the time that the lien attached. See Farrey v. Sanderfoot, 500 U.S. 291, 296 (1991) ("Therefore, unless the debtor had the property interest to which the lien attached at some point before the lien attached to that interest, he or she cannot avoid the fixing of the lien under the terms of § 522(f)(1)."). This does not appear to be the operative question, however, because it appears that any interest that Debtor possesses in the property predates the recordation of the lien. The question, instead, is, assuming Debtor has an equitable interest in the property, whether HOA’s lien attaches to that interest.
California law now explicitly provides that judgment liens can attach to equitable interests. See CAL. CODE CIV. P. § 697.340. Nevertheless, Debtor was not the entity against which HOA obtained a judgment; the judgment is against Debtor’s daughter. Debtor has not advanced any argument or authority as to why Debtor’s interest in property is subject to the enforcement of a money judgment obtained against Debtor’s daughter. If HOA had obtained a money judgment against Debtor, it is possible that the recordation of the abstract of judgment would operate to fix a lien on Debtor’s equitable interest in real property. But HOA obtained a judgment against Debtor’s daughter, which attaches only to interests of the daughter, and Debtor’s interest does not appear to be subject to the money judgment. Therefore, HOA’s lien never attached to Debtor’s alleged equitable interest, and Debtor, as a result, cannot avoid the lien.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Young Sil Han Wang Represented By Robert G Uriarte
Movant(s):
Young Sil Han Wang Represented By Robert G Uriarte Robert G Uriarte Robert G Uriarte Robert G Uriarte Robert G Uriarte
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Docket 8
On January 17, 2018, Eduvina Leon ("Debtor") filed a Chapter 7 voluntary petition. Debtor had previously filed two bankruptcies in the previous eighteen months, both of which were quickly dismissed. On February 1, 2018, UST filed a motion to dismiss case with a re-filing bar.
Dismissal
11 U.S.C. § 707(b)(1) permits the Court to dismiss a Chapter 7 case for abuse. 11 U.S.C.
§ 707(b)(3)(A) states:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in
11:00 AM
paragraph (2)(A)(i) does not arise or is rebutted, the court shall consider –
(A) whether the debtor filed the petition in bad faith
In determining whether a case should be dismissed under § 707(b)(3)(A), the Court considers the totality of the circumstances, but is ultimately instructed to consider whether "the debtor’s intention in filing a bankruptcy petition is inconsistent with the Chapter 7 goals of providing a ‘fresh start’ to debtors and maximizing the return to creditors." In re Mitchell, 357 B.R. 142, 154-55 (Bankr. C.D. Cal. 2006) (listing factors to be considered in making that determination).
The majority of the Mitchell factors are inapplicable when, as here, a debtor files a skeletal petition that does not provide the Court with sufficient information to apply the Mitchell test. Only factor seven (history of bankruptcy filings) and, possibly, factor nine (egregious behavior) can be assessed when a debtor files a skeletal petition. Both those factors weigh in favor of dismissal when, as here, a debtor repeatedly files skeletal petitions during a short period of time, and does not disclose previous filings. While § 707(a)(1) and (3) provide for dismissal when a debtor fails to fulfill his duties under the Bankruptcy Code, when a debtor repeatedly filed bankruptcy and fails to evince any attempt to comply with the filing requirements, it can be inferred, absent any indication to the contrary, that the debtor’s purpose in filing bankruptcy is not to take advantage of the fresh start. See, e.g., In re Craighead, 377 B.R. 648, 655 (Bankr.
N.D. Cal. 2007) ("Courts generally hold that when a debtor repeatedly files bankruptcy petitions and then repeatedly fails to file schedules or to comply with other requirements, this pattern of behavior is evidence of bad faith and an attempt to abuse the system."). Dismissal under § 707(b)(3) is appropriate in those circumstances.
Re-Filing Bar
The court is empowered to impose a refiling bar under 11 U.S.C. § 349(a). As
11:00 AM
COLLIER notes, courts’ analysis of this section is somewhat confused due to confounding "dismissal with prejudice" with "dismissal with injunction against future filings." COLLIER ON BANKRUPTCY ¶ 349.02[3]; compare In re Garcia, 479 B.R. 488 (Bankr. N.D. Ind. 2012) (denying motion for dismissal with prejudice, but imposing three-year refiling bar) with In re Craighead, 377 B.R. 648 (Bankr. N.D. Cal. 2007) (appearing to equate dismissal with prejudice with an injunction against refiling).
There is also a circuit split concerning whether an injunction on refiling for more than 180 days is allowed under the Bankruptcy Code. Compare In re Frieouf, 938 F.2d 1099 (10th Cir. 1991) (180 days is maximum allowed length of refiling injunction) with Casse v. Key Bank Nat. Ass’n, 198 F.3d 327 (2nd Cir. 1999) (injunction against filing for more than 180 days permissible). 11 U.S.C. § 349(a) reads:
Unless, the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
The disagreement revolves around whether the qualifier "Unless, the court, for cause, orders otherwise" modifies the content after the semi-colon. In re Leavitt noted this disagreement, but since the court was dealing with a dismissal with prejudice, rather than an injunction against refiling, it did not resolve the issue. 209 B.R. 935, 942 (9th Cir. B.A.P. 1997). Within the Ninth Circuit, it appears the trend is to adopt the reasoning of the Second Circuit and allow injunctions for more than 180 days. See e.g. In re Velasques, 2012 WL 8255582 at *3 (Bankr. E.D. Cal. 2012).
Here, Debtor has filed four skeletal bankruptcies in the previous two years and failed to disclose the previous filings. As noted above, the Court has determined that Debtor’s behavior is sufficient to warrant dismissal for bad faith and the Court finds the requested one year refiling bar to be appropriate.
Moreover, Debtor’s failure to oppose is deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
11:00 AM
The Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Eduvina Juanita Paredes Leon Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/20/17, 2/7/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:13-01111 Vega v. Barrios
Docket 46
- NONE LISTED -
Debtor(s):
Carmen Elisabeth Barrios Represented By David H Chung
Defendant(s):
Carmen Elisabeth Barrios Represented By
Andrew Edward Smyth
Plaintiff(s):
Crystal Vega Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
Also #11 EH
Docket 68
PROCEDURAL BACKGROUND
On February 26, 2016, Sam & Greeta Dason (Sam, individually, "Dason") (collectively, "Debtors") filed a Chapter 7 voluntary petition. On August 22, 2016, Juddy Olivares & Eric Panitz (individually, "Olivares" and "Panitz") (collectively, "Plaintiffs") filed a complaint against Dason to determine dischargeability of debt (11
U.S.C. § 523(a)(6)) and for attorney’s fees. On September 20, 2016, the complaint was amended. On January 11, 2017, the Court dismissed Panitz from the complaint. On March 7, 2017, Olivares filed her second amended complaint.
On August 9, 2017, Dason filed an answer and a counter-claim1 against Olivares. On October 2, 2017, Olivares filed her answer to the counter-claim. On January 19, 2018, Olivares filed the instant motion for summary judgment. On February 13, 2018, Dason filed his opposition to the motion for summary judgment. On February 21, 2018, Olivares filed her reply.
The Court notes that Dason has conceded that his counter-claim is moot in light of this Court’s order annulling the automatic stay. As a result of this concession, it is the Court’s intention to dismiss the counter-claim in the absence of any objection from Dason.
2:00 PM
FACTUAL BACKGROUND
Olivares began working as a dental assistant in 2010 for Colton Dental Group, the business name of Dason’s dental corporation, Sam Daniel Dason, DDS ("Dason DDS"). Olivares states that she "was subjected to offensive sexual comments and inquiries, and other unwelcome, sexually-based, offensive conduct by Defendant." Furthermore, Olivares states that she "was subjected to repeated unwelcome sexual touching at the hands of Defendant," which is extensively detailed in the complaint and the motion for summary judgment. On January 17, 2013, Olivares left early and did not return to work. On February 26, 2016, the San Bernardino County Superior Court entered a judgment against Dason and Dason DDS in the amount of
$1,724,996.34 (the "Judgment").2 The judgment contained the following components:
$300,000 for past emotional distress – hostile work environment
$200,000 for past emotional distress – quid pro quo sexual harassment
$500,000 for future emotional distress
$100,000 for punitive damages3
$1,875 for future psychiatric care
$8,125 for future psychological care
$6,735.22 for past lost income
$608,261.12 for attorney’s fees and costs
Olivares contends that the judgment is non-dischargeable pursuant to 11 U.S.C.
§ 523(a)(6). Olivares bases her motion for summary judgment both on issue preclusion and the record in this case. Dason argues that the record in this case cannot support summary judgment and that the state court judgment does not contain adequate findings to support issue preclusion.
Olivares requests that the Court apply issue preclusion and find that the Judgment is non-dischargeable under 11 U.S.C. § 523(a)(6). The Bankruptcy Code excepts from discharge any debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). The creditor bears the burden of proving each element of § 523(a)(6) by a preponderance of the evidence. See, e.g., Grogan v. Garner, 498 U.S. 279, 287 (1991).
To prevail on a claim under § 523(a)(6), a creditor must demonstrate three elements:
2:00 PM
willful conduct; (2) malice; and (3) causation. See In re Butcher, 200 B.R. 675, 680 (Bankr. C.D. Cal. 1996) (quoting In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995)). A willful injury is a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). "A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008) (quoting In re Jercich, 238 F.3d 1202, 1209 (9th Cir. 2001)).
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c) (incorporated by FED. R. BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff’s State Court Claim
The legal provision under which the relevant portion of the Judgment was based is
CAL. GOV. CODE § 12940(j)(1), which states:
2:00 PM
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
Olivares reference EEOC guidelines which create two categories of sexual harassment: (1) quid pro quo and (2) hostile environment. Olivares also points to case law which acknowledges the two categories. See, e.g., Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 516-517 (Cal. Ct. App. 1998) ("There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. The second, and the one at issue in this case, is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.") (citations and quotations omitted).
The delineation of two separate categories of sexual harassment is relevant and important here. First, the Court notes that the Judgement references Olivares’s claim for "Hostile Work Environment and Quid Pro Quo Sexual Harssament," and the state
2:00 PM
court specifically identified separate damages for "past emotional distress hostile work environment" and "past emotional distress quid pro quo sexual harassment." [Dkt. No. 70 at pg. 8, lines 1-2]. Because these two categories of sexual harassment implicate different issues and require different findings to be made, issue preclusion may operate differently with respect to each issue.
Issue Preclusion on Plaintiff’s Claim under 11 U.S.C. § 523(a)(6)
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001).
Additionally, the application of issue preclusion requires a "mandatory ‘additional’ inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system,
2:00 PM
promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted).
Here, the Court’s focus is on the second and third elements of the Harmon test because there is no dispute that the Judgement is final and on the merits, and that the parties are the same. Specifically, the Court is concerned with whether "willfulness" was actually litigated and necessarily decided in state court.4
For a default judgment to be "actually litigated," the material factual issues must have been both raised in the pleadings and necessary to uphold the default judgment.
Gottlieb v. Kest, 141 Cal. App. 4th 110, 149 (Cal. Ct. App. 2006). An express finding need not have occurred if the court in the prior proceeding necessarily decided the issue. Cantrell v. Cal–Micro, Inc. (In re Cantrell), 329 F.3d 1119, 1124 (9th Cir.2003).
Under California law, an issue is necessarily decided when (1) there are explicit findings of an issue made in a judgment or decision, or (2) or when the issue is a conclusion that must have been necessarily decided by the court. Samuels v. CMW Joint Venture (In re Samuels), 273 F. App'x 691, 693 (9th Cir. 2008).
Olivares argues that "[c]ourts analogize quid pro quo sexual harassment to ‘extortion,’ which is not only an intentional tort but is also a crime." [Dkt. No. 68, pg. 14, lines
24-26]. The Court finds the analogy to be apt. The injury sustained in a quid pro quo sexual harassment claim is a tangible, negative effect on employment terms. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982). The quid pro quo conditioning of these employment terms is, necessarily, an intentional action of the employer. As noted in section III, "willfulness" requires an intentional injury, not merely an intentional act. In the case of quid pro quo sexual harassment, the distinction is illusory – intentionally and negatively conditioning an individual’s employment terms with unwanted sexual advances is the equivalent of intentionally causing an injury. See, e.g., In re Roth, 2014 WL 684630 at *6 (Bankr. D. Colo. 2014) (applying issue preclusion to find quid pro quo sexual harassment to be willful, albeit in a non-default situation). Therefore, that part of the Judgment which deals with quid pro quo sexual harassment contains a finding of "willfulness."
2:00 PM
The analysis regarding hostile workplace, however, is different. As noted by Olivares, the "hostile workplace" theory of sexual harassment generally requires unwanted sexual advances that have the "effect of unreasonably interfering with an individual’s work performance." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). In contrast to the quid pro quo liability, where the injury results from an employer’s intentional reaction or retaliation, the injury under a hostile workplace theory is subjective and dependent upon the employee’s perspective. An employer is certainly capable of unintentionally creating a hostile work environment.
The issue preclusion section of Olivares’s motion for summary judgment focuses on the quid pro quo theory of sexual harassment. The Court agrees with Olivares’s that "willfulness," as it is used in 11 U.S.C. § 523(a)(6), is implicit within a judgment for quid pro quo sexual harassment. But it is not necessarily implicit in a judgment under the "hostile workplace" theory of sexual harassment – the hostile workplace could be created negligently or unintentionally, based on incorrect assumptions of the employer.
Dason has not advanced any argument why the application of collateral estoppel to the facts of this specific case would not be "fair and consistent with sound public policy." Dason’s opposition concedes Dason was aware that a trial was scheduled and the date when the trial would occur. Yet, after three years of litigation, no appearance was made on behalf of Dason at the trial. Given the extensive litigation that occurred in state court and the fact that the non-appearance of Dason at trial was due to a conscious choice, and part of a deliberate litigation strategy, the Court concludes that application of issue preclusion would continue the preserve the integrity of the judicial system and promote judicial economy. Thus, partial application of issue preclusion would further the policy and interests underlying the doctrine. See, e.g., In re Baldwin, 249 F.3d 912, 919-920 (9th Cir. 2001) (describing policies underlining collateral estoppel).
Absence of a Genuine Issue of Material Fact
2:00 PM
Olivares alternatively argues that the record in this case is sufficient to warrant summary judgment independent of the state court judgment. The Court disagrees. The record in this case essentially consists of: (1) Olivares’s extensive and detailed description of the alleged sexual harassment; and (2) Dason’s denial of the allegations. After the partial application of issue preclusion noted above, the only remaining factual issue is whether the "willfulness" requirement of § 523(a)(6) is satisfied as to that part of the Judgment which arises from a hostile workplace theory of sexual harassment. Here, the Court is simply presented with competing declarations from Dason and Olivares which assert, respectively, that Dason did not intend to create a hostile workplace environment and that it can be inferred that Dason had such an intention. Apart from those declarations, the record contains two pages of a deposition of Cesar Espinoza stating that Olivares complained that Dason grabbed her posterior at some point in time. Given the paucity of the existing record and the unambiguously contradictory declarations of Dason and Olivares, the Court concludes that summary judgment is inapplicable on this record.
The Court is inclined to GRANT summary judgment as to the Judgment in so far as the Judgment relates to a quid pro quo theory of sexual harassment and DENY summary judgment in so far as the Judgment relates to a hostile workplace theory of sexual harassment for failure to satisfy the "willfulness" requirement of § 523(a)(6). The Court may order briefing regarding the apportionment of damages that are not specifically assigned to one category.
APPEARANCES REQUIRED.
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
2:00 PM
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
Juddy Olivares Represented By Lazaro E Fernandez
Juddy Olivares Pro Se
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 1/24/18
Also #10 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
2:00 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
12:30 PM
Docket 112
On June 22, 2012, James and Betty Bierly (collectively, "Debtors") filed their petition for chapter 13 relief. The Debtors have reached the end of their chapter 13 case. However, during the pendency of the case, James Bierly passed away.
On January 26, 2018, Debtor Wife Betty Bierly moved this Court for a waiver of the financial course requirement for her deceased husband ("Motion"). The Motion was properly served and no opposition has been filed.
Section 1328(g)(2) exempts certain debtors from the requirement that an instructional course concerning personal financial management be completed as a condition of receipt of a discharge. Section 1328(g)(2) applies specifically to debtors that are unable to complete the requirements because of "incapacity, disability, or active military duty in a military combat zone." 11 U.S.C. § 109(h)(4).
In In re Trembulak, 362 B.R. 205, 207 (Bankr. D.N.J. 2007), the Court analyzed the requirement that debtors complete a financial management course in the context of section 727 and the policies underlying receipt of a discharge. The Trembulak Court analyzed cases in which debtors had been excused from the
12:30 PM
requirement and determined that
[C]learly the Debtor herein cannot participate in an instructional course on personal financial management and obviously such a course will not aid the Debtor in avoiding future financial distress. It seems palpably obvious that if a financial management course would be meaningless for an 81 year old, hearing-impaired debtor, suffering from prostate cancer, then such a course would likewise offer even less benefit to a deceased debtor.
Id. The Court concurs with, and adopts the analysis of the Trembulak Court.
Based on the foregoing, the Court is inclined to GRANT the Motion exempting James Bierly from the § 1328(g) financial management course requirement.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
James Edward Bierly Represented By Hector C Perez
Joint Debtor(s):
Betty Ann Bierly Represented By Hector C Perez
Movant(s):
James Edward Bierly Represented By Hector C Perez
Betty Ann Bierly Represented By Hector C Perez
12:30 PM
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:30 PM
EH
Docket 175
- NONE LISTED -
Debtor(s):
Jesse Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Joint Debtor(s):
Rocio Delgado Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (SA) Cohen (TR)
12:30 PM
MOVANT: EDGARDO ARANDA AND KELLEY ARANDA
From: 2/27/18, 3/6/18 EH
Docket 13
The Court has reviewed the Debtors' supplemental declaration and finds cause to GRANT the Motion in its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
The Court is inclined to DENY the motion. The Court finds that Debtors have not provided clear and convincing evidence sufficient to rebut the presumption arising under § 362(c)(3)(C) that this case was not filed in good faith. Specifically, the motion does not address the reasons the previous case was dismissed. Instead the motion and Debtor’s declaration repeatedly recite that the Debtors are willing and able to make their plan payment without any specificity or detail being provided.
APPEARANCES REQUIRED. Paul Lee to personally appear.
Debtor(s):
Edgardo Aranda Represented By Paul Y Lee
12:30 PM
Joint Debtor(s):
Kelley Aranda Represented By Paul Y Lee
Movant(s):
Edgardo Aranda Represented By Paul Y Lee Paul Y Lee
Kelley Aranda Represented By Paul Y Lee Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
From: 11/9/17, 1/11/18, 2/8/18 EH
Docket 56
- NONE LISTED -
Debtor(s):
Mary Black-Williams Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
12:31 PM
From: 11/9/17 EH
Docket 71
- NONE LISTED -
Debtor(s):
Penelope Ann Young Pro Se
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
12:31 PM
From: 12/14/17, 2/8/18 EH
Docket 79
- NONE LISTED -
Debtor(s):
Jacquelyn Anna Palmer Represented By Steven A Alpert
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:31 PM
Docket 117
- NONE LISTED -
Debtor(s):
Eleanor L. Harvey Represented By
Dale Parham - INACTIVE - Michael Smith
Sundee M Teeple
Movant(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
12:32 PM
From: 7/6/17, 10/5/17, 10/26/17, 12/14/17, 12/21/17
EH
Docket 0
- NONE LISTED -
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Frank J Cordova Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
HOLDING DATE
From: 1/4/18, 2/8/18 Also #10
EH
Docket 14
01/04/2018
Summary of the Motion:
TENTATIVE
Creditor by its opposition requests a continuance of at least 30 days to obtain a verified appraisal of the Property.
Debtor argues that because the Motion must be filed and heard prior to confirmation of the chapter 13 plan, a continuance of the Motion cannot be granted. However, the Debtor presumes that the plan will be confirmed on January 4, 2018. It is common practice to permit secured creditors an opportunity to obtain an appraisal prior to ruling on a motion to avoid junior lien. Debtor provides no authority for the proposition that such a continuance would be unjustified in circumstances such as these nor has the Debtor articulated any legal prejudice that would result from the
12:32 PM
continuance.
In sum, the Court finds no merit in the Debtor’s reply. A continuance of the Motion for the appraisal is warranted.
APPEARANCES REQUIRED.
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Movant(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #9 EH
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Verduzco Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #12 EH
Docket 20
- NONE LISTED -
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Movant(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Also #11 EH
Docket 0
VW objects to Debtor’s plan because it proposes a 1.5% interest rate (which is the contract rate). VW asserts that under Till it should receive 7.25% (representing prime of 4.25 plus a 3% increase for the additional risk factor).
In Till v. SCS Credit Corp., the Supreme Court held that the formula approach, requiring adjustment of prime national interest rate based on risk of nonpayment, was the appropriate method for determining adequate rate of interest on a crammed down loan. 541 U.S. 465 (2004).
The approach begins by looking to the national prime rate. Id. at 478-479. The approach then requires a bankruptcy court to adjust the prime rate according to the bankrupt debtors’ risk of nonpayment. Id. The appropriate size of that risk adjustment depends on such factors as (1) the circumstances of the estate, (2) the nature of the security, and (3) the duration and feasibility of the reorganization plan. Additionally, the court must hold a hearing at which the debtor and any creditors may present evidence about the appropriate risk adjustment. Finally, the Court indicated that creditors should bear the evidentiary burden as to risk.
Here, VW’s claim on the Petition Date was $17,876.35 (per VW’s proof of claim). The Plan proposes to cramdown VW’s claim, paying VW in full only on the secured portion of its claim. Thus, under Till, VW as the holder of a crammed down loan is entitled to an adjusted interest rate.
12:32 PM
In Till, the Supreme Court indicated that a court choosing a cramdown interest rate need not consider the creditor's individual circumstances, such as its prebankruptcy dealings with the debtor or the alternative loans it could make if permitted to foreclose. Id. Rather, the court should aim to treat similarly situated creditors similarly, and to ensure that an objective economic analysis would suggest the debtor's interest payments will adequately compensate all such creditors for the time value of their money and the risk of default. Id. Thus, here, the Debtor is incorrect that simply because she has proposed a 100% plan and has a pre-bankruptcy contract rate of 1.5%, VW should simply accept that pre-bankruptcy rate. Such rate simply does not recognize the reality acknowledged by the Supreme Court that "on the one hand, the fact of the bankruptcy establishes that the debtor is overextended and thus poses a significant risk of default and on the other hand, the postbankruptcy obligor is no longer the individual debtor but the court-supervised estate, and the risk of default is thus somewhat reduced."
Based on the foregoing, the Court finds that under Till, the interest rate can and should be adjusted to account for the different risk profile presented by the Debtor now as opposed to when the Debtor obtained the contract rate. At a minimum, VW’s Objection should be SUSTAINED such that it should receive at least the 4.25% prime interest rate. Given the risk of default of a borrower in bankruptcy, the Court would be inclined to add an additional percentage point to the prime rate, for a total interest rate of 5.25% for VW.
On November 29, 2017, Lena Wade ("Debtor") filed a Chapter 13 voluntary petition and plan. On December 28, 2017, Debtor filed an amended plan. On January 11,
12:32 PM
2018, Trustee filed an objection to confirmation. Among the grounds listed in Trustee’s objection was that confirmation should contain a condition that prohibited Debtor from modifying the plan to pay less than 100% to unsecured creditors unless Debtor paid all disposable income into the plan. On January 25, 2018, Debtor filed her opposition to Trustee’s objection. On February 5, 2018, Trustee filed a reply brief.
Trustee requests that this Court adopt the holding of In re McCarthy, 554 B.R. 388 (Bankr. W.D. Tex. 2016). The Court declines to do so for the reasons that follow.
11 U.S.C. § 1325(a) enumerates plan confirmation requirements. If the confirmation requirements are satisfied then "[e]xcept as provided in subsection (b), the court shall confirm [the] plan." Id. 11 U.S.C. § 1325(b)(1) states:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan ---
the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Subject to the discussion below, for the sake of analysis, the Court will assume § 1325(b)(1) is applicable here. Trustee argues in section II.D of its brief that once
§ 1325(b)(1) is invoked, confirmation is discretionary:
12:32 PM
However, the language in § 1325(b) is permissive and, therefore, more discretionary – "the court MAY not confirm unless . . ." Therefore, debtor’s argument that the court MUST confirm the plan because it meets the requirements of § 1325 is not supported by the language of the statute. In fact, the Chapter 13 Trustee would argue that it is the discretionary language of
§ 1325(b)(1) that allows the court, under its equitable powers, to order a conditional confirmation as the court did in McCarthy.
[Dkt. No. 24, pg. 10, lines 1-8] (parenthesis omitted) (italicization added for emphasis). Trustee’s assertion that the language of § 1325(b) is permissive and discretionary, however, is statutorily incorrect. 11 U.S.C. § 102(4) states: "’may not’ is prohibitive, and not permissive." As a result, the foundation of Trustee’s position appears to rest on a misreading of the statute.
Instead, the Code provides for the following analysis at plan confirmation: (1) if the debtor has satisfied the § 1325(a) confirmation requirements and no objection is received, then the Court must confirm the plan; (2) if an objection is received and the debtor has not satisfied § 1325(b)(1), the Court cannot confirm the plan; and (3) if an objection is received and the debtor has satisfied § 1325(a)-(b)(1), then the Court must confirm the plan. See, e.g., 8 COLLIER’S ON BANKRUPTCY ¶ 1325.11[e] (16th ed. 2016) ("If an objection to confirmation is filed under section 1325(b)(1), the objection must be denied when ‘the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim.’ . . . [I]f the plan provides that the claims are to be paid in full, the trustee cannot demand that the debtors devote all of their projected disposable income each month to payment of claims in order to pay them more quickly.").
Even if § 1325(b)(1) provided for a discretionary determination by the Court, the nature of the objection filed by Trustee is inadequate to invoke the § 1325(b)(1) requirements. See, e.g., In re Torres, 193 B.R. 319, 322-23 (Bankr. N.D. Cal. 1996) ("in order for that subsection [§1325(b)(1)(B)] to become applicable to confirmation, an objection to confirmation must be made alleging that a debtor is not devoting all disposable income to the plan for a minimum period of three years."). As a result,
12:32 PM
even if § 1325(b)(1) provided for a discretionary determination, the standard would be irrelevant in this case.
Apart from the statutory interpretations problems with the Trustee’s argument, the Court finds that policy and equitable considerations weigh against Trustee’s position. The Court notes that the disposable income requirement is disjunctive: either the debtor must pledge all disposable income to the plan or the debtor must pay unsecured creditors in full. The Trustee does not dispute that Debtor has satisfied the disjunctive test.
Ultimately, the Trustee relies upon the Court’s § 105 equitable powers in support of the request at issue. Rarely will it be the case, however, that the equities will in favor of creating a fixed rule binding for years regardless of changes in circumstances. The review of a proposed plan modification is generally a highly equitable endeavor that emphasizes the totality of the circumstances. Replacing that equitable analysis with a rigid rule not provided for by the Code is simply inequitable.
The Court does agree, however, that a plan term requiring Debtors in a 100% plan to have to account for excess disposable income, in the even they later file a motion to modify, is of benefit.
APPEARANCES REQUIRED.
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 0
On November 29, 2017, William & Carla Walker ("Debtors") filed a Chapter 13 voluntary petition. On December 7, 2017, Debtors filed a Chapter 13 plan. On January 11, 2018, Trustee filed an objection to confirmation. Among the grounds listed in Trustee’s objection was that confirmation should contain a condition that prohibited Debtors from modifying the plan to pay less than 100% to unsecured creditors unless Debtor paid all disposable income into the plan. On January 25, 2018, Debtors filed their opposition to Trustee’s objection. On February 5, 2018, Trustee filed a reply brief.
Trustee requests that this Court adopt the holding of In re McCarthy, 554 B.R. 388 (Bankr. W.D. Tex. 2016). The Court declines to do so for the reasons that follow.
12:32 PM
11 U.S.C. § 1325(a) enumerates plan confirmation requirements. If the confirmation requirements are satisfied then "[e]xcept as provided in subsection (b), the court shall confirm [the] plan." Id. 11 U.S.C. § 1325(b)(1) states:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan ---
the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Subject to the discussion below, for the sake of analysis, the Court will assume § 1325(b)(1) is applicable here. Trustee argues in section II.D of its brief that once
§ 1325(b)(1) is invoked, confirmation is discretionary:
However, the language in § 1325(b) is permissive and, therefore, more discretionary – "the court MAY not confirm unless . . ." Therefore, debtor’s argument that the court MUST confirm the plan because it meets the requirements of § 1325 is not supported by the language of the statute. In fact, the Chapter 13 Trustee would argue that it is the discretionary language of
§ 1325(b)(1) that allows the court, under its equitable powers, to order a conditional confirmation as the court did in McCarthy.
[Dkt. No. 24, pg. 10, lines 1-8] (parenthesis omitted) (italicization added for emphasis). Trustee’s assertion that the language of § 1325(b) is permissive and discretionary, however, is statutorily incorrect. 11 U.S.C. § 102(4) states: "’may not’ is prohibitive, and not permissive." As a result, the foundation of Trustee’s position appears to rest on a misreading of the statute.
12:32 PM
Instead, the Code provides for the following analysis at plan confirmation: (1) if the debtor has satisfied the § 1325(a) confirmation requirements and no objection is received, then the Court must confirm the plan; (2) if an objection is received and the debtor has not satisfied § 1325(b)(1), the Court cannot confirm the plan; and (3) if an objection is received and the debtor has satisfied § 1325(a)-(b)(1), then the Court must confirm the plan. See, e.g., 8 COLLIER’S ON BANKRUPTCY ¶ 1325.11[e] (16th ed. 2016) ("If an objection to confirmation is filed under section 1325(b)(1), the objection must be denied when ‘the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim.’ . . . [I]f the plan provides that the claims are to be paid in full, the trustee cannot demand that the debtors devote all of their projected disposable income each month to payment of claims in order to pay them more quickly.").
Even if § 1325(b)(1) provided for a discretionary determination by the Court, the nature of the objection filed by Trustee is inadequate to invoke the § 1325(b)(1) requirements. See, e.g., In re Torres, 193 B.R. 319, 322-23 (Bankr. N.D. Cal. 1996) ("in order for that subsection [§1325(b)(1)(B)] to become applicable to confirmation, an objection to confirmation must be made alleging that a debtor is not devoting all disposable income to the plan for a minimum period of three years."). As a result, even if § 1325(b)(1) provided for a discretionary determination, the standard would be irrelevant in this case.
Apart from the statutory interpretations problems with the Trustee’s argument, the Court finds that policy and equitable considerations weigh against Trustee’s position. The Court notes that the disposable income requirement is disjunctive: either the debtor must pledge all disposable income to the plan or the debtor must pay unsecured creditors in full. The Trustee does not dispute that Debtor has satisfied the disjunctive test.
Ultimately, the Trustee relies upon the Court’s § 105 equitable powers in support of the request at issue. Rarely will it be the case, however, that the equities will in favor of creating a fixed rule binding for years regardless of changes in circumstances. The review of a proposed plan modification is generally a highly equitable endeavor that
12:32 PM
emphasizes the totality of the circumstances. Replacing that equitable analysis with a rigid rule not provided for by the Code is simply inequitable.
The Court does agree, however, that a plan term requiring Debtors in a 100% plan to have to account for excess disposable income, in the even they later file a motion to modify, is of benefit.
APPEARANCES REQUIRED.
Debtor(s):
William Edward Walker Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Lenton T. Hutton Represented By Brian Nomi
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Ronny DePasquale Represented By Julie J Villalobos
Joint Debtor(s):
Trudy DePasquale Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Marilyn N Koehnlein Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Lourdes Yanga Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Evangelina Leyva Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Shelley R. Long Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
Docket 0
- NONE LISTED -
Debtor(s):
Amanuel Montrell Bradberry Represented By Gary S Saunders
Joint Debtor(s):
Katrina Lashall Bradberry Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
12:32 PM
EH
Docket 10
03/08/2018
BACKGROUND
On January 19, 2018 ("Petition Date"), Caesar Rodriguez (the "Debtor") filed his petition for chapter 13 relief.
The docket reflects that the Debtor has filed numerous prior cases as follows:
Case Number 17-13967, Chapter 13 filed in California Central Bankruptcy on 05/11/2017, Dismissed for Failure to File Information on 05/30/2017;
Case Number 17-12050, Chapter 13 filed in California Central Bankruptcy on 03/16/2017, Dismissed for Failure to File Information on 04/03/2017;
Case Number 16-16171, Chapter 13 filed in California Central Bankruptcy on 07/11/2016, Dismissed for Failure to File Information on 07/29/2016;
Case Number 16-14241, Chapter 13 filed in California Central Bankruptcy on 05/11/2016, Dismissed for Failure to File Information on 05/31/2016;
Case Number 13-10260, Chapter 13 filed in California Central Bankruptcy on 01/07/2013, Dismissed for Other Reason on 02/21/2013; and
Case Number 10-29451, Chapter 7 filed in California Central Bankruptcy on 06/23/2010, Standard Discharge on 10/12/2010.
On February 5, 2018, the Office of the United States Trustee ("UST") filed a Motion to Dismiss Chapter 7 Case with a Re-Filing Bar (the "Motion"). No opposition has been filed.
DISCUSSION
As set forth by the Ninth Circuit in In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.
1999), bad faith, as cause for the dismissal of a Chapter 13 petition with prejudice,
12:32 PM
involves the application of the "totality of the circumstances" test. In re Eisen, 14 F.3d 469, 470 (9th Cir.1994). The Ninth Circuit has instructed courts deciding whether to dismiss a Chapter 13 petition to consider the following factors:
whether the debtor "misrepresented facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner," id. (citing In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982));
"the debtor's history of filings and dismissals," id. (citing In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985));
whether "the debtor only intended to defeat state court litigation," id. (citing In re Chinichian, 784 F.2d 1440, 1445–46 (9th Cir.1986)); and
whether egregious behavior is present, In re Tomlin, 105 F.3d 933, 937 (4th Cir.1997); In re Bradley, 38 B.R. 425, 432 (Bankr.C.D.Cal.1984).
A finding of bad faith does not require fraudulent intent by the debtor.
[N]either malice nor actual fraud is required to find a lack of good faith. The bankruptcy judge is not required to have evidence of debtor ill will directed at creditors, or that debtor was affirmatively attempting to violate the law-malfeasance is not a prerequisite to bad faith.
In re Powers, 135 B.R. 980, 994 (Bankr.C.D.Cal.1991) (relying on In re Waldron, 785 F.2d 936, 941 (11th Cir.1986)).
The UST asserts based on the Debtor’s petition and history of cases that (1) the Debtor failed to disclose several of his prior cases; (2) that the Debtor’s schedules lists only one creditor, Ditech, which may be an indication that the case was filed with the sole purpose of attempting to delay a foreclosure or unlawful detainer proceeding;
(3) a second debtor named Roxane Arambula has filed three recent cases within a three month period and has listed the same address on her petition as the address of the Debtor; (4) the Debtor has had at least four cases dismissed for failure to file complete schedules.
Here, the record set forth by the UST demonstrates the Debtor’s bad faith willingness to use inappropriate filings to forestall his creditors. This bad faith finding
12:32 PM
is further supplemented by evidence that the Debtor has worked in concert with Ms. Arambula to prevent hinder and delay their creditors. Based on the foregoing facts, including a record of noncompliance with the duties of a debtor, the UST has established that dismissal is warranted and that a two-year bar under the Court’s § 105 and § 349 authority is appropriate.
TENTATIVE RULING
The Court’s tentative ruling is to GRANT the Motion in its entirety DISMISSING the Debtor’s case and imposing a two-year re-filing bar.
APPEARANCES REQUIRED.
Debtor(s):
Caesar A Rodriguez Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
Docket 79
- NONE LISTED -
Debtor(s):
David Sandoval Represented By
Bryant C MacDonald
Joint Debtor(s):
Mary Celine Sandoval Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 54
- NONE LISTED -
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:33 PM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Elizabeth Jucaban Tuason Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
Also #2 EH
Docket 1
09/13/2017
On August 16, 2017, the Court entered its Order Imposing Sanctions ("Sanctions Order") as to Defendant/Cross-Defendants Continental Capital, LLC, Stephen Collias, and their Counsel, for failure to comply with the deadlines imposed by the Court in its May 16, 2017, Order to Show Cause ("OSC"). The Sanctions Order included: (1) a sanction payable to the Court of $500; and (2) attorney’s fees for time spent attending the July 26, 2017, hearing and for time spent preparing declarations in support of the fee sanctions. The Court docketed receipt of the $500 sanctions due to the Court on August 28, 2017.
On August 16, 2017, the sanctioned parties filed their request that the Court reverse its Sanctions Order as to attorney fees, and their alternative opposition to the reasonableness of the fees sought by Bojorquez and Morschauser. The fees sought by each party is set forth below:
BOJORQUEZ FEE BREAKDOWN
9:30 AM
Hourly Rate for Lawrence Kuhlman: $350/hr
Preparation for Status Conference, including call with client re: same – 1.7 hours Travel to/Attendance at Status Conference – 3.9 hours
Draft Declaration re: Fees - .3 hours Total: 5.9 hour x 350 =$2,065 MORSCHAUSER FEE BREAKDOWN
Hourly Rate for Reid Winthrop: $595
Preparation for Status Conference, including call with client re: same – 2.8 hours Travel to/Attendance at Status Conference - 4.3 hours
Draft Declaration re: Fees - .5 hours
Total: 7.6 hours x $595 = $4,522 (Note: a miscalculation of the summation resulted in a request of $4,581.50 for 7.7 hours in the Winthrop Declaration).
As a threshold matter, the sanctioned parties seek reversal of the fee sanctions award. However, there is no authority or analysis provided as to why the modification of the Court’s sanctions award is appropriate under Rule 60. Separately, the Court is not satisfied that the explanation for why the error occurred would warrant setting aside of the sanctions award. Additionally, although the sanctioned parties argue that the "Status Conference" on the OSC would have occurred with or without the error, the Court disagrees that no time was wasted. In particular, the late filing of the responsive pleading by the sanctioned parties necessitated a further hearing for the other parties to reply in order to provide the Court and parties with all of the briefing to permit an informed discussion regarding the bounds of an evidentiary hearing.
Finally, as to the fees requested, the Court finds that the billing rates are reasonable and the sanctioned parties have provided no evidence to controvert the
9:30 AM
reasonableness of the hourly rates. However, the Court shall reduce the fee requests for travel time and time expended in preparation for the July 26 hearing, based on reasonableness of the time entries, reducing 3 hours for Mr. Winthrop and 1.5 hours for Mr. Kuhlman, for a total reduction of $1,758 as to Mr. Winthrop’s fees and a reduction of $525 as to Mr. Kuhlman.
Thus, Mr. Kuhlman’s fee shall be reduced by $525 to $1,540, and Mr.
Winthrop’s fee shall be reduced by $1,785 to $2,737.
APPEARANCES REQUIRED.
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Stephen Collias Represented By Cara J Hagan
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
9:30 AM
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop
Trustee(s):
Arturo Cisneros (TR) Pro Se
9:30 AM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
HOLDING DATE
From: 3/11/15, 5/20/15, 7/29/15, 12/16/15, 2/3/16, 3/16/16, 5/11/16, 8/31/16, 11/2/16, 11/16/16, 3/8/17, 6/7/17, 7/26/17, 9/13/17
Also #1 EH
Docket 1
- NONE LISTED -
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Stephen Collias Represented By Cara J Hagan
Jesse Bojorquez Represented By
9:30 AM
Lawrence J Kuhlman Autumn D Spaeth ESQ
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop
Trustee(s):
Arturo Cisneros (TR) Pro Se
4:00 PM
MOVANT: DIANA J. EVERETT
From: 3/6/18 EH
Docket 8
03/06/2018
The Debtor indicates that the case was dismissed for two reasons: (1) the Debtor’s disability income decreased, and (2) the Debtor’s daughter was in a serious accident in November 2017 and the Debtor has been paying her medical and legal fees associated with the accident.
The Debtor’s explanation for the dismissal of the prior case is sufficiently detailed. However, the Motion does not address whether there has been a change in the financial or personal affairs of the Debtor since January 2018 (when the case was dismissed) such that the Debtor is likely to be able to complete her plan going forward. In particular, there is no indication that the medical emergency which resulted in dismissal of the Debtor’s prior case has ended. Additionally, the Debtor now indicates that she is supporting her unemployed domestic partner. The Debtor’s disposable income has decreased from $4,197.72 in her prior case to $704.72 in the current case.
Separately, the Court notes that the Notice of Motion did not specify the identities of the Debtor’s secured creditors as required by the Court’s form motion. As such, notice for the secured creditors is improper.
4:00 PM
For these reasons, the Court is inclined to DENY the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Diana J Everett Represented By Paul Y Lee
Movant(s):
Diana J Everett Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
4:00 PM
EH
Docket 5
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
10:00 AM
MOVANT: DINESH PATEL, AUTHORIZED AGENT OF ECONO LODGE INN & SUITES IN RIVERSIDE CA
From: 2/27/18, 3/6/18 EH
Docket 12
APPEARANCES REQUIRED.
Debtor(s):
Tena Renee Fry Pro Se
Movant(s):
Dinesh Patel Represented By
Benjamin R Heston
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Everett W Delbridge III Pro Se
Movant(s):
SPECIALIZED LOAN SERVICING Represented By
Christina J O
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Leslie Marie Spaur Pro Se
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 15
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jeremy L. Moore Represented By Patricia M Ashcraft
Joint Debtor(s):
Angelina R. Moore Represented By Patricia M Ashcraft
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 9
Service is Improper Opposition: None
The Court is inclined to CONTINUE the hearing on the motion for improper service. Specifically, Local Rule 4001(c)(1)(C) requires service on the debtor, in addition to the debtor’s attorney. Here, Movant has not served Debtor. The hearing is continued to April 17, 2018, at 10:00 a.m. for Movant to serve Debtor with a copy of the motion and serve all proper parties with a notice of continuance.
APPEARANCES WAIVED.
Debtor(s):
Willie J Bryant Represented By Ronald L Brownson
Movant(s):
BMO Harris Bank N.A. Represented By Deborah S Cochran
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: THE REO GROUP
EH
Docket 41
Service is Proper Opposition: Late
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. DENY request for relief under § 1301(a) because this is not a Chapter 13 proceeding.
GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request for adequate protection as moot.
APPEARANCES REQUIRED.
Debtor(s):
Mark Miller Represented By
Bruce A Boice
Movant(s):
The REO Group, Inc. Represented By Coby Halavais
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT request for relief pursuant to § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request for relief under ¶ 2. DENY alternative request for relief under ¶ 11.
APPEARANCES REQUIRED.
Debtor(s):
Samuel Canovas Gomez Represented By Lauren M Foley
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 31
- NONE LISTED -
Debtor(s):
Gerald Curtis Collins Represented By
M Wayne Tucker
Joint Debtor(s):
Valerie Cecelia Collins Represented By
M Wayne Tucker
Movant(s):
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THEATLAS REAGOR, JR.
EH
Docket 25
On July 19, 2017, Stacy Reagor ("Debtor") filed a Chapter 13 voluntary petition. On September 7, 2017, Debtor’s Chapter 13 plan was confirmed.
On January 23, 2018, Debtor’s ex-husband, Theatlas Reagor ("Movant"), filed a motion for relief from the automatic stay. Movant selected an improper hearing date, however, and so the motion was not set for hearing, and a notice to filer was generated. On February 20, 2018, Movant filed an amended notice of hearing. Movant requests relief from the automatic stay to "obtain a State Court Order to enforce reimbursement of one-half of all amounts expended by Movant in regards to medical services for his minor children in accordance with Domestic Support Order dated December 29, 2010, and for modification of Child support." Movant also seeks annulment of the automatic stay.
First, the Court notes that 11 U.S.C. § 362(b)(2)(A)(ii) excepts from the automatic stay acts "for the establishment or modification of an order for domestic support obligations." Furthermore, 11 U.S.C. § 362(b)(2)(C) provides a mechanism to enforce
10:00 AM
a domestic support obligation which is automatically excepted from the scope of the automatic stay. The combined operation of these two provisions would seem to render the instant motion unnecessary, to the extent the motion seeks prospective relief from the automatic stay. The Court will construe this request as a request for a comfort order to make clear that the stay does not operate to stop enforcement of the support obligations.
Second, while the Court notes that it is unclear what action, if any violated the automatic stay, the Court finds that the application of the Fjeldsted factors warrants annulment of the automatic stay. Specifically, the Court notes that Movant has provided evidence it was not aware of the bankruptcy filing. Furthermore, the Court notes that Debtor was, probably inappropriately, omitted from Debtor’s master mailing matrix in this case. Additionally, the evidence before the Court indicates that Debtor promptly halted his actions in state court upon learning of the bankruptcy filing. Finally, as noted in the paragraph above, it is not clear that the actions of Movant actually violate the automatic stay. For all those reasons, and because Debtor has not opposed the instant motion, which the Court deems to be consent to the relief requested pursuant to Local Rule 9013-(1)(h), the Court is inclined to annul the automatic stay.
The Court is inclined to CONFIRM that the automatic stay does not operate to stop enforcement of the support obligations and otherwise ANNUL the automatic stay.
APPEARANCES REQUIRED.
Debtor(s):
Stacy N Reagor Represented By
M Wayne Tucker
10:00 AM
Movant(s):
Stacy N Reagor Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 51
- NONE LISTED -
Debtor(s):
Tony Rene Lee Represented By Brian J Soo-Hoo
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18 EH
Docket 69
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
EH
Docket 104
- NONE LISTED -
Debtor(s):
Oscar R Avila Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Alice M Avila Represented By Michael Smith Sundee M Teeple
Movant(s):
Deutsche Bank Trust Company Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
John Douglas Bacon Represented By Andrew Moher
Joint Debtor(s):
Monica Marie Bacon Represented By Andrew Moher
Movant(s):
Nationstar Mortgage LLC as Represented By Jennifer C Wong
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 163
Service is Proper Opposition: None
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Ronald Andrew Lopez Represented By David Lozano
Joint Debtor(s):
Lisa Darlene Lopez Represented By David Lozano
Movant(s):
U.S. Bank National Association, as Represented By
Leslie M Klott Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Also #17 EH
Docket 35
On January 26, 2018, Markus Boyd ("Debtor") filed a Chapter 11 voluntary petition. On January 30, 2018, Debtor filed a motion to employ Nicholas Gebelt ("Counsel") as bankruptcy counsel, and Counsel filed a statement of disinterestedness.
On February 13, 2018, UST filed an objection to the employment application. UST’s objection related to several fee provisions in Counsel’s retainer agreement.
Specifically, UST objected to the characterization of the pre-petition retainer as "earned-upon-receipt and nonrefundable," in addition to a few other provisions.
On February 26, 2018, Counsel filed an amended employment application to address the concerns raised by UST. After a review of the amended application, it appears to the Court that Counsel has removed all of the provisions objected to by UST.
2:00 PM
11 U.S.C. § 327(a) states:
Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.
Pursuant to 1107(a), Debtor, as a debtor in possessions, has the rights in duties of a trustee. Debtor’s counsel has submitted adequate evidence establishing his disinterestedness in this case. Subject to additional concerns of UST, the Court is inclined to approve the application.
The Court is inclined to APPROVE the application.
APPEARANCES REQUIRED.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By
2:00 PM
Nicholas W Gebelt
2:00 PM
Requiring Status Report Also #16
EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Also #19 EH
Docket 38
On January 18, 2018, Ohlone Tribe of Carmel First Settlers of Chino Valley CA, Inc. ("Debtor") filed a Chapter 11 voluntary petition.
On February 2, 2018, Vanhoops Holdings LP ("Creditor") filed a motion for relief from the automatic stay. At a hearing on March 6, 2018, the Court substantially granted the Creditor’s motion, and also made a finding that Debtor filed its petition in bad faith. Additionally, at the hearing on March 6, the Court authorized UST to set a hearing on a motion to dismiss on shortened time.
11 U.S.C. § 1112(b)(1) states:
2:00 PM
Except as provided in paragraph (2) and subsection (c), on request of a party I interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(4) provides a non-exclusive list of sixteen examples of cause. 11
U.S.C. § 1112(b)(2) provides certain exceptions for dismissal or conversion for cause.
Here, UST asserts that cause exists pursuant to § 1112(b)(4)(A), which states that cause includes "substantial or continuing loss or diminution of the estate and the absence of a reasonable likelihood of rehabilitation." UST asserts that after Creditor obtained relief from stay to foreclosure on certain real property which constitutes the only material asset of Debtor, Debtor has no source of revenue and essentially no assets. The Court agrees that these circumstances constitute cause pursuant to § 1112(b). The Court further finds that neither of the exceptions identified in § 1112(b)
are applicable in this case. Finally, because Debtor does not have material unencumbered assets to distribute to any unsecured creditors, the Court concludes that conversion to Chapter 7 would be fruitless, and, therefore, dismissal is in the best interests of creditors.
The Court is inclined to GRANT the motion and DISMISS the case.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Ohlone Tribe of Carmel First Settlers Represented By
Odeha L Warren
Movant(s):
United States Trustee (RS) Represented By Everett L Green
2:00 PM
From: 3/6/18 Also #18
EH
Docket 0
- NONE LISTED -
Debtor(s):
Ohlone Tribe of Carmel First Settlers Represented By
Odeha L Warren
2:00 PM
MOVANT: BMO HARRIS BANK N.A.
Also #21 EH
Docket 161
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
BMO HARRIS BANK N.A. Represented By
Jennifer Witherell Crastz
2:00 PM
MOVANT: BMO HARRIS BANK N.A.
Also #20 EH
Docket 168
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from stay pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
BMO HARRIS BANK N.A. Represented By
Jennifer Witherell Crastz
2:00 PM
EH
Docket 173
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
United States Trustee (RS) Represented By Everett L Green
2:00 PM
From: 2/6/18, 2/13/18, 3/6/18 Also #22
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
Adv#: 6:17-01286 ASR Constructors Inc a California Corporation et a v. Insurance Company
EH
Docket 30
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Defendant(s):
Insurance Company Of The West Represented By
Jennifer Leland David B Shemano Howard J Weg
Employment Development Represented By
Elisa B Wolfe-Donato
Angela Denise McKnight Pro Se
Steven Schonder Pro Se
United states of america Represented By Charles Parker
Carlin Law Group APC Represented By Kevin R Carlin
Ledcor Construction, Inc., a Represented By
2:00 PM
Daniel P Scholz
DOES 1 through 10, inclusive Pro Se
Movant(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
Plaintiff(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
10:00 AM
From: 3/7/18 Also #2
EH
Docket 11
- NONE LISTED -
Debtor(s):
Stacy Aleen Eble Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
From: 3/7/18 Also #1
EH
Docket 13
- NONE LISTED -
Debtor(s):
Stacy Aleen Eble Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
From: 3/7/18 EH
Docket 51
- NONE LISTED -
Debtor(s):
Joanne Saycon Represented By Terrence Fantauzzi
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 34
03/21/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 2,250 Trustee Expenses: $ 309.23
The trustee may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Eduardo Garcia Represented By Sydell B Connor
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 135
APPEARANCES WAIVED. Per consent of the parties, the Court will issue an order continuing the matter for approximately 30 days.
Debtor(s):
Matthew Joseph Pautz Represented By Todd L Turoci Julie Philippi
Joint Debtor(s):
Alice Louise Pautz Represented By Todd L Turoci Julie Philippi
Trustee(s):
Karl T Anderson (TR) Represented By Leonard M Shulman Melissa Davis Lowe Samuel J Romero
11:00 AM
Docket 148
03/21/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 1,750 Trustee Expenses: $ 646.64
The Trustee may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Erma Fay Dorn Represented By Patricia M Ashcraft
Trustee(s):
Arturo Cisneros (TR) Represented By William Malcolm Kiana Khajeh Dane W Exnowski Katelyn R Knapp
11:00 AM
Also #8 & #9 EH
Docket 129
03/21/2018
The Court has reviewed the Application for Fees and Costs under Section 328 and approves on a final basis the following:
G&F Contingency Fee: $200,340 G&F Expenses: $7,969.81
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Movant(s):
Goe & Forsythe, LLP Represented By Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
11:00 AM
Also #7 & #9 EH
Docket 130
03/21/2018
The Court has reviewed the Application for Fees and Costs under Section 328 and approves on a final basis the following:
SSSPO Contingency Fee: $76,917 SSSPO Expenses: $456.97
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Movant(s):
Stein Shostak Shostak Pollack & Represented By
Elon A Pollack Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe
11:00 AM
Donald Reid
11:00 AM
Also #7 & #8 EH
Docket 131
03/21/2018
The Court has reviewed the Application for Fees and Costs under Section 327 and 330 and approves on a final basis the following:
GlassRatner Fees: $52,290 GlassRatner Expenses: $7,969.81
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Movant(s):
Glassratner Advisor & Capital Represented By Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe
11:00 AM
Donald Reid
11:00 AM
(Holding date)
From: 10/1/14, 11/5/14, 12/3/14, 12/15/14, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 10/21/15, 11/18/15, 12/16/15, 1/13/16, 3/2/16, 5/4/16, 6/1/16, 9/28/16, 11/16/16,
2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 9/20/17
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
11:00 AM
EH
Docket 234
- NONE LISTED -
Debtor(s):
Charles Frederick Biehl Represented By
Daryl L Binkley - DISBARRED - Steven L Bryson
Trustee(s):
John P Pringle (TR) Represented By James C Bastian Jr Elyza P Eshaghi Brandon J Iskander Lynda T Bui
Leonard M Shulman
11:00 AM
Docket 41
- NONE LISTED -
Debtor(s):
Bertrand Tenke Kengni Represented By Terrence Fantauzzi
Movant(s):
Carisa Kengni Represented By
W. Derek May
Trustee(s):
Helen R. Frazer (TR) Pro Se
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:17-01191 Frealy v. Cebadas et al
From: 1/31/18 Also #15
EH
Docket 24
BACKGROUND
On October 15, 2015, Martha Loreno Soto Jimenez ("Debtor") and her (ex)husband acquired certain real property located at 1475 Capri Ln., San Jacinto, CA 92583 (the "Property"). On July 20, 2016, a divorce judgment provided that the Property was the separate property of Debtor. On June 22, 2017, Debtor and her (ex)husband transferred the Property to their sons via grant deed. The grant deed states: "This is a bonafide gift and the grantor received nothing in return.
On July 27, 2017, Debtor filed a Chapter 7 voluntary petition. On September 8, 2017, Trustee filed a complaint for: (1) declaratory relief; (2) avoidance of voidable transfer;
2:00 PM
recovery of avoided transfer; (4) sale of interest of co-owner in property of the estate; and (5) turnover of property against Armando Cebadas (Debtor’s husband or ex-husband), Jose Alfredo Cebadas Soto (Debtor’s son), Victor Armando Cebadas Soto (Debtor’s son), and Debtor (collectively, "Defendants"). On October 17, 2017, the clerk entered default against Defendants. On January 10, 2018, Trustee filed a motion for default judgment.
DISCUSSION
Entry of Default
Fed. R. Civ. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
Fed. R. Bankr. P. Rule 7004(b)(1) states, in part:
2:00 PM
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Trustee served Defendants at the Property. It is unclear, however, whether the property is the "dwelling house or usual place of abode" for Debtor’s (ex)husband and two children. The Court requires additional evidence to establish that the Defendants (other than Debtor) were served in accordance with the requirements of Fed. R. Bankr. P. Rule 7004(b)(1).
Merits of Plaintiff’s claim
Assuming Trustee establishing that service was proper, the Court will address the merits of the motion. Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes nine causes of action: (1) declaratory relief; (2) five separate causes of action for avoidance of voidable transfer; (3) recovery of avoided transfer; (4) sale of interest of co-owner in property of the estate; and (5) turnover of property
2:00 PM
Regarding the first cause of action, declaratory relief, the complaint requests a determination that the Property is the community property of Debtor and her ex- husband. Trustee alleges in the complaint that Debtor and Armando acquired their interest in the Property prior to the petition date, while they were married. While this appears true, Trustee has provided additional information in the motion for default judgment, namely a divorce judgment, which indicates that the property is actually the separate property of Debtor. This creates a dilemma because, upon default, the factual allegations of the complaint are to be taken as true. Furthermore, Trustee cannot ask for relief (i.e. a declaration that the Property is Debtor’s separate property) which goes beyond the scope of the relief requested in the complaint. Therefore, the Court cannot grant Trustee’s request for a determination that the Property is separate property. The Court also cannot grant Trustee’s request for a determination that the Property is community property because Trustee has submitted evidence establishing that the Property is in fact not community property.
Regarding the second through sixth causes of action, avoidance of voidable transfer, Trustee has cited three Code provisions authorizing avoidance of the transfer of the Property to Debtor’s sons: §544(b) (with reference to Cal. Civ. Code § 3439.04(a)(1) &(2), §3439.05, and § 3439.07), § 548(a)(1)(A), and § 548(a)(1)(B). The first cause of action for avoidable transfer cites 11 U.S.C. §§ 544(b) and 550(a) and Cal. Code Civ.
P. §§ 3439.04(a)(1) and 3439.07. Section 544(b) states that a trustee may avoid a transfer of an interest of the debtor that is voidable under applicable law. Cal. Code Civ. P. § 3439.04(a)(1) states that a debtor’s transfer of an interest in property is voidable if the transfer was made "[w]ith actual intent to hinder, delay, or defraud" creditors. Trustee’s complaint sufficiently alleges that the transfer was made with actual intent to hinder, delay, or defraud creditors. 11 U.S.C. § 548(a)(1)(A) is materially identical to Cal. Code Civ. P. § 3439.04(a)(1) so Trustee has also satisfied the former.
Cal. Code Civ. P. § 3439.04(a)(2) provides that a transfer is voidable if the debtor does not receive reasonable equivalent value and either (a) was engaged or about to engage in a transaction for which its remaining assets were unreasonable small or (b)
2:00 PM
or believed or reasonably should have believed it would incur debts beyond the debtor’s ability to pay. While the grant deed indicates it was a bona fide gift, and thus no reasonably equivalent value was received, Trustee has not provided sufficient factual allegations to satisfy the latter component of the test. Specifically, there is no factual allegation which supports the contention that Debtor’s assets were unreasonably small for future transactions or that Debtor was about to incur debts beyond the debtor’s ability to pay. 11 U.S.C. § 548(a)(1)(B) is materially identical to Cal. Code Civ. P. § 3439.04(a)(2) so the analysis is the same regarding the former.
Cal. Code Civ. P. § 3439.05 provides that a transfer is voidable as to a creditor whose claim arose before the transfer if the debtor did not receive reasonably equivalent value and the debtor was or became insolvent as a result of the transfer. Trustee’s complaint sufficiently alleges that Debtor did not receive reasonably equivalent value, that Debtor was insolvent as a result of the transfer and that there is a creditor whose claim arose before the transfer.
Regarding recovery of the avoidable transfer, 11 U.S.C. § 550 provides that transfers avoided under §§ 544 and 548 are recoverable from the initial transferee. Trustee’s complaint sufficiently alleges that Debtor’s two sons, named defendants, are the initial transferees, and, therefore Trustee has satisfied § 550.
Regarding Trustee’s request to sell an interest of a co-owner of property under § 363 (h), the Court is inclined to conclude that Trustee’s complaint sufficiently establishes the four statutory requirements.
Finally, regarding Trustee’s request for turnover, Section 542(a) provides for turnover of property of the estate that is of consequential value. Here, Trustee has sufficiently satisfied the requirements of § 542(a) by demonstrating that the Property is property of the estate and that the Property is not of inconsequential value.
2:00 PM
Amount of Damages
Here, Trustee is not requesting any damages, and, therefore, no evidence is required establishing the amount of damages.
TENTATIVE RULING
Conditioned on Trustee establishing that service on Defendants was proper, the Court is inclined to issue judgment in favor of the Trustee on the second, fourth, fifth, seventh, eight, and ninth claims for relief. The motion for default judgment is denied without prejudice as to the third and sixth claims for relief. The motion for default judgment is denied with prejudice as to the first claim for relief, although to the extent necessary Trustee is free to amend the complaint as to the first claim for relief.
APPEARANCES REQUIRED.
Debtor(s):
Martha Lorena Soto Jimenez Represented By Marlin Branstetter
Defendant(s):
Armando Cebadas Pro Se
Jose Alfredo Cebadas Soto Pro Se
Victor Armando Cebadas Soto Pro Se
2:00 PM
Martha Lorena Soto Jimenez Pro Se
Movant(s):
Todd A. Frealy Represented By Carmela Pagay
Plaintiff(s):
Todd A. Frealy Represented By Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:17-01191 Frealy v. Cebadas et al
(Dismissed first, third, sixth, and eighth claims on 3/16/18)
From: 11/8/17, 1/31/18 Also #14
EH
Docket 1
- NONE LISTED -
Debtor(s):
Martha Lorena Soto Jimenez Represented By Marlin Branstetter
Defendant(s):
Armando Cebadas Pro Se
Jose Alfredo Cebadas Soto Pro Se
Victor Armando Cebadas Soto Pro Se
Martha Lorena Soto Jimenez Pro Se
2:00 PM
Plaintiff(s):
Todd A. Frealy Represented By Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:18-01026 United States Trustee for the Central District of v. Lambert et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Defendant(s):
Timothy Wayne Lambert Pro Se
Lisa Renee Lambert Pro Se
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
Plaintiff(s):
United States Trustee for the Central Represented By
Everett L Green
Trustee(s):
John P Pringle (TR) Pro Se
2:00 PM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
2:00 PM
Adv#: 6:18-01021 Cisneros v. Ganahl Lumber Company, A California Corporation
EH
Docket 1
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Defendant(s):
Ganahl Lumber Company, A Pro Se
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Plaintiff(s):
Arturo Cisneros Represented By Todd A Frealy Lindsey L Smith
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:16-01295 Abbasi v. Surace et al
From: 2/15/17, 5/17/17, 6/7/17, 10/25/17, 11/29/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Defendant(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Walie Qadir Represented By
Batkhand Zoljargal
Marym Qadir Represented By
Batkhand Zoljargal
Plaintiff(s):
Setareh Abbasi Represented By
Bruce Dannemeyer
2:00 PM
Trustee(s):
Bruce Dannemeyer
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
2:00 PM
Adv#: 6:17-01028 Frealy, Chapter 7 Trustee v. Tanaka et al
From: 4/5/17, 6/7/17, 8/2/17, 1/24/18, 1/31/18 EH
Docket 1
1/31/2018
The status conference will be continued to March 21, 2018 at 2:00 p.m.
APPEARANCES WAIVED.
Debtor(s):
Sheri Tanaka Christopher Represented By Brian J Soo-Hoo
Defendant(s):
Ronald Howard Tanaka Represented By David L Prince
Carolyn Naomi Tanaka Represented By Phillips S Barry
2:00 PM
Ryan Satoshi Tanaka Represented By David L Prince
Leora Linda Tanaka Represented By Phillips S Barry
Estate of Yaeko Sato, a California Represented By
David L Prince
Plaintiff(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monserrat Morales
Trustee(s):
Todd A. Frealy (TR) Represented By Monserrat Morales
2:00 PM
Adv#: 6:16-01128 Frealy v. Trotochau et al
(Stip Judgment with Robin Trotochau 12/4/17)
(Dismissed as to Defendant Pacific Mortgage Exchange Inc. 3/19/18)
From: 7/20/16, 9/28/16, 1/11/17, 3/8/17, 6/7/17, 8/23/17, 9/27/17, 1/31/18
EH
Docket 1
1/31/2018
The status conference will be continued to March 21, 2018 at 2:00 p.m.
APPEARANCES WAIVED.
Debtor(s):
M. A. Tabor Represented By
Judith Runyon
Defendant(s):
Robin Sherrie Trotochau Pro Se
Pacific Mortgage Exchange, Inc. Represented By
Leib M Lerner
2:00 PM
Plaintiff(s):
Todd A. Frealy Represented By Anthony A Friedman
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman Lindsey L Smith
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17, 2/28/18
EH
Docket 1
02/28/2018
This hearing is vacated. The Status Conference is CONTINUED to March 21, 2018, at 2:00 p.m. The Court has provided notice to the parties of the continuance.
APPEARANCES WAIVED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Plaintiff(s):
Charles Edward Schrader Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
12:30 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17, 2/1/18, 2/8/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
12:30 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 50
On November 14, 2016, Deborah Hamernik ("Debtor") filed a Chapter 13 voluntary petition. On January 17, 2017, Debtor’s Chapter 13 plan was confirmed.
On January 3, 2018, Trustee filed a motion to dismiss for delinquency. On January 17, 2018, Debtor filed her opposition to the motion to dismiss for delinquency. After no appearance was made on behalf of Debtor at the motion to dismiss, the case was dismissed on January 25, 2018.
On February 14, 2018, Debtor filed a motion to vacate dismissal. On February 15, 2018, Trustee filed comments indicating conditional approval of the motion.
Debtor relies on FED. R. CIV. P. Rule 60(b)(1), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, which allows for relief from an order
12:30 PM
based on "mistake, inadvertence, surprise, or excusable neglect." Here, Debtor has not identified any "mistake, inadvertence, surprise, or excusable neglect" to warrant the application of FRCP Rule 60(b)(1).
The legal basis for Debtor’s assertion that the dismissal order should be vacated is that Debtor’s counsel inadvertently did not appear at the hearing due to an office error. It is well established, however, that "an attorney’s ignorance and carelessness does not provide grounds for Rule 60(b) relief." In re Mercado, 144 B.R. 879, 886 (Bankr.
C.D. Cal. 1992) (citing Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir. 1972). And the mere assertion that counsel did not fulfill its duties, but that such carelessness was inadvertent, is clearly inadequate to support Rule 60(b) relief. See, e.g., In re ACME Motors, Inc., 125 B.R. 702, 703 (Bankr. D.R.I. 1991).
"Rule 60(b) relief is extraordinary." Id. Yet, in this court, a request for relief from a Chapter 13 dismissal order has become ordinary. On occasion, the requests are legally sound; in fact, the Court has a legally proper Rule 60(b) request on its calendar for March 22, 2018.
Here, however, the underlying motion to dismiss was filed in early January. After counsel neglected to appear at the hearing, a motion was filed which essentially states that Debtor has cured some of the arrears, will cure more by the date of this hearing, and will, at a later date, cure the remainder. In essence, Debtor’s current position is that, after her counsel did not appear at the original hearing, two months later she can almost cure the material default.
When a Chapter 13 trustee files a motion to dismiss, a debtor (or his or her counsel) has the opportunity to oppose the motion and select a hearing. The expectation is that an appropriate hearing date will be selected and the debtor will cure the material default, or at least make substantial, tangible progress towards curing the material default, by the date of the hearing. It is unacceptable for a debtor (or their counsel) to select a hearing date, not show up at the hearing, and then, about two months later, assert that they are almost ready to cure the material default.
12:30 PM
The Seventh Circuit has stated that:
he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds. The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances.
Bakery Mach. & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009). "Although attorney carelessness can [in certain circumstances] constitute ‘excusable neglect’ under Rule 60(b)(1), attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent behavior may have on a litigant." Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (collecting cases).
The Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
12:30 PM
Movant(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 150
On July 10, 2013, Francisco & Maria Medina ("Debtors") filed a Chapter 13 voluntary petition. On August 30, 2013, Debtors’ Chapter 13 plan was confirmed.
On January 10, 2018, Trustee filed a motion to dismiss for delinquency. On January 23, 2018, Debtors filed their opposition and a request for hearing. On February 8, 2018, after a hearing, the case was dismissed.
On February 22, 2018, Debtors filed a motion to vacate dismissal. The factual basis of Debtors’ motion is that Debtors had sent in a payment to cure the arrears on February 1, 2018, but, one week later, the payment had not yet posted. On February 23, 2018, Trustee filed its comments indicating approval of the motion conditioned on the full cure of the outstanding delinquency.
12:30 PM
Debtors rely on FED. R. CIV. P. Rule 60(b)(1), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect." Here, it appears that Debtors attempted to cure the outstanding delinquency by the date of the hearing and had, in fact, sent in a payment to cure the delinquency one week prior to the hearing. Because it appears that the dismissal of the case was due to the inadvertence of the Debtors, because Debtors have a meritorious defense and acted promptly to rectify the problem, and because no opposition has been filed to the instant motion, the Court is inclined to grant the motion and vacate dismissal of the case.
The Court is inclined to GRANT the motion conditioned on compliance with the Trustee’s comments.
APPEARANCES REQUIRED.
Debtor(s):
Francisco Javier Medina Represented By Tamar Terzian
Joint Debtor(s):
Maria Guadalupe Medina Represented By Tamar Terzian
Movant(s):
Francisco Javier Medina Represented By Tamar Terzian
Maria Guadalupe Medina Represented By
12:30 PM
Trustee(s):
Tamar Terzian Tamar Terzian
Rod Danielson (TR) Pro Se
12:30 PM
Docket 38
On March 1, 2017, Jose Gonzalez ("Debtor") filed a Chapter 13 voluntary petition. On April 12, 2017, Debtor’s Chapter 13 plan was confirmed.
On April 12, 2017, Mechanics Bank FKA CRB Auto ("Creditor") filed a secured claim in the amount of $8,667.13 ("Claim 3"). On February 9, 2018, Debtor filed an objection to Claim 3.
According to Debtor, on August 29, 2017, ostensibly while purchasing a new car, Debtor made a payment of $12,430.81 to Moss Bros Honda for a pay-off of the debt underlying Claim 3. Debtor now requests that Claim 3 be disallowed, and that Creditor be ordered to pay any funds received which exceed the amount of the payment to Creditor provided for in the Chapter 13 plan.
.APPLICABLE LAW:
12:30 PM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
First, the Court notes that pursuant to FED. R. BANKR. P. Rule 7001(1), a proceeding to
12:30 PM
recover money or property requires an adversary proceeding. See also FED. R. BANKR.
P. Rule 3007(b). While the requirement of an adversary proceeding may be waivable in certain circumstances, here Creditor has not responded to the claim objection and the objection was mailed to a PO Box. In such circumstances, the Court cannot deem Creditor to have waived the requirement of an adversary proceeding. Therefore, Debtor’s request for an order directing Creditor to return funds will be denied.
Second, the Court notes that the recipient of Debtor’s post-petition payment (Moss Bros. Honda) is not Creditor, but a third party whose relationship with Creditor is unclear from the record, and there is no evidence that Creditor received the alleged payoff.
Ultimately, if Debtor made a significant payment to a pre-petition creditor outside the Chapter 13 plan, the claim objection process is not the proper mechanism for redressing such an error.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Jose A. Gonzales Jr. Represented By Michael E Clark Barry E Borowitz
12:30 PM
Movant(s):
Jose A. Gonzales Jr. Represented By Michael E Clark Michael E Clark Michael E Clark Barry E Borowitz Barry E Borowitz Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 27
On July 19, 2017, Stacy Reagor ("Debtor") filed a Chapter 13 voluntary petition. On September 7, 2017, Debtor’s Chapter 13 plan was confirmed.
On October 23, 2017, Debtor amended Schedule F to add a disputed debt of unknown amount owing to Theatlas Reagor ("Creditor") for child support overpayment and reimbursement for payment of medical services provided to the children of Debtor and Creditor. On January 21, 2018, Creditor filed a priority claim in the amount of
$6,232.81 ("Claim 9").
On February 7, 2018, Debtor filed an objection to Claim 9. Debtor argues that Claim 9 was late filed and is insufficiently documented. On March 7, 2018, Creditor filed his opposition. Creditor asserts the claim was filed late because he was not timely informed of the pendency of the bankruptcy case. Creditor’s response to Debtor’s argument that the documentation is inadequate is less than clear. Creditor appears to assert that the medical documentation is confusing, and that he will amend the claim
12:30 PM
to provide additional documentation.
The Court also notes that two days prior to this hearing, the Court held a hearing on Creditor’s motion for relief from the automatic stay.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226
12:30 PM
(9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
Debtor argues that Creditor’s claim must be disallowed because it is untimely. Here, the deadline for filing claims was November 29, 2017, and Creditor’s claim was filed on January 21, 2018.
"[T]he Ninth Circuit has repeatedly held that the deadline to file a proof of claim in a Chapter 13 proceeding is ‘rigid,’ and the bankruptcy court lacks equitable power to extent this deadline after the fact." In re Barker, 839 F.3d 1189, 1197 (9th Cir. 2016). "By virtue of Rule 9006(b)(3), a bankruptcy court does not have discretion to enlarge the time periods fixed by Rule 3002(c) nor permit an untimely claim when none of Rule 3002(c)’s five exceptions is applicable." In re Hayes, 327 B.R. 453, 458 (Bankr.
C.D. Cal. 2005) (footnote omitted); see also In re Edelman, 237 B.R. 146, 152 (B.A.P. 9th Cir. 1999). Here, none of Rule 3002(c)’s exceptions apply.
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 9.
APPEARANCES REQUIRED.
Debtor(s):
Stacy N Reagor Represented By
12:30 PM
Movant(s):
M Wayne Tucker
Stacy N Reagor Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eduardo Betancourt Reyes Represented By
James Geoffrey Beirne
Joint Debtor(s):
Beatriz Betancourt Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #8 EH
Docket 42
As a preliminary manner, the Court notes that this is Debtor’s second motion to avoid the subject lien in the instant case. The previous motion was denied for a litany of notice, service, and technical issues.
Regarding the instant motion, the Court notes the fair market value of the property exceeds the amount of the first lien. Therefore, the second lien (if any, see below) is not wholly unsecured and Debtor cannot avoid the lien using § 506(d).
Nevertheless, the Court also notes that the evidence provided by Debtor indicates that the debt underlying the second lien was discharged and the mortgage lien was released by the lienholder several months ago. Counsel to explain why this motion was filed.
APPEARANCES REQUIRED. Patricia Mireles to personally appear.
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Movant(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
12:30 PM
Trustee(s):
Patricia A Mireles Patricia A Mireles Patricia A Mireles
Rod Danielson (TR) Pro Se
12:30 PM
Also #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 22
- NONE LISTED -
Debtor(s):
Danny Josefy Represented By Kevin Tang
Movant(s):
Danny Josefy Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
VW objects to Debtor’s plan because it proposes a 1.5% interest rate (which is the contract rate). VW asserts that under Till it should receive 7.25% (representing prime of 4.25 plus a 3% increase for the additional risk factor).
In Till v. SCS Credit Corp., the Supreme Court held that the formula approach, requiring adjustment of prime national interest rate based on risk of nonpayment, was the appropriate method for determining adequate rate of interest on a crammed down loan. 541 U.S. 465 (2004).
The approach begins by looking to the national prime rate. Id. at 478-479. The approach then requires a bankruptcy court to adjust the prime rate according to the bankrupt debtors’ risk of nonpayment. Id. The appropriate size of that risk adjustment depends on such factors as (1) the circumstances of the estate, (2) the nature of the security, and (3) the duration and feasibility of the reorganization plan. Additionally, the court must hold a hearing at which the debtor and any creditors may present evidence about the appropriate risk adjustment. Finally, the Court indicated that creditors should bear the evidentiary burden as to risk.
Here, VW’s claim on the Petition Date was $17,876.35 (per VW’s proof of claim). The Plan proposes to cramdown VW’s claim, paying VW in full only on the secured portion of its claim. Thus, under Till, VW as the holder of a crammed down loan is entitled to an adjusted interest rate.
In Till, the Supreme Court indicated that a court choosing a cramdown interest
12:30 PM
rate need not consider the creditor's individual circumstances, such as its prebankruptcy dealings with the debtor or the alternative loans it could make if permitted to foreclose. Id. Rather, the court should aim to treat similarly situated creditors similarly, and to ensure that an objective economic analysis would suggest the debtor's interest payments will adequately compensate all such creditors for the time value of their money and the risk of default. Id. Thus, here, the Debtor is incorrect that simply because she has proposed a 100% plan and has a pre-bankruptcy contract rate of 1.5%, VW should simply accept that pre-bankruptcy rate. Such rate simply does not recognize the reality acknowledged by the Supreme Court that "on the one hand, the fact of the bankruptcy establishes that the debtor is overextended and thus poses a significant risk of default and on the other hand, the postbankruptcy obligor is no longer the individual debtor but the court-supervised estate, and the risk of default is thus somewhat reduced."
Based on the foregoing, the Court finds that under Till, the interest rate can and should be adjusted to account for the different risk profile presented by the Debtor now as opposed to when the Debtor obtained the contract rate. At a minimum, VW’s Objection should be SUSTAINED such that it should receive at least the 4.25% prime interest rate. Given the risk of default of a borrower in bankruptcy, the Court would be inclined to add an additional percentage point to the prime rate, for a total interest rate of 5.25% for VW.
On November 29, 2017, Lena Wade ("Debtor") filed a Chapter 13 voluntary petition and plan. On December 28, 2017, Debtor filed an amended plan. On January 11, 2018, Trustee filed an objection to confirmation. Among the grounds listed in Trustee’s objection was that confirmation should contain a condition that prohibited
12:30 PM
Debtor from modifying the plan to pay less than 100% to unsecured creditors unless Debtor paid all disposable income into the plan. On January 25, 2018, Debtor filed her opposition to Trustee’s objection. On February 5, 2018, Trustee filed a reply brief.
Trustee requests that this Court adopt the holding of In re McCarthy, 554 B.R. 388 (Bankr. W.D. Tex. 2016). The Court declines to do so for the reasons that follow.
11 U.S.C. § 1325(a) enumerates plan confirmation requirements. If the confirmation requirements are satisfied then "[e]xcept as provided in subsection (b), the court shall confirm [the] plan." Id. 11 U.S.C. § 1325(b)(1) states:
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan ---
the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Subject to the discussion below, for the sake of analysis, the Court will assume § 1325(b)(1) is applicable here. Trustee argues in section II.D of its brief that once
§ 1325(b)(1) is invoked, confirmation is discretionary:
However, the language in § 1325(b) is permissive and, therefore, more
12:30 PM
discretionary – "the court MAY not confirm unless . . ." Therefore, debtor’s argument that the court MUST confirm the plan because it meets the
requirements of § 1325 is not supported by the language of the statute. In fact, the Chapter 13 Trustee would argue that it is the discretionary language of
§ 1325(b)(1) that allows the court, under its equitable powers, to order a conditional confirmation as the court did in McCarthy.
[Dkt. No. 24, pg. 10, lines 1-8] (parenthesis omitted) (italicization added for emphasis). Trustee’s assertion that the language of § 1325(b) is permissive and discretionary, however, is statutorily incorrect. 11 U.S.C. § 102(4) states: "’may not’ is prohibitive, and not permissive." As a result, the foundation of Trustee’s position appears to rest on a misreading of the statute.
Instead, the Code provides for the following analysis at plan confirmation: (1) if the debtor has satisfied the § 1325(a) confirmation requirements and no objection is received, then the Court must confirm the plan; (2) if an objection is received and the debtor has not satisfied § 1325(b)(1), the Court cannot confirm the plan; and (3) if an objection is received and the debtor has satisfied § 1325(a)-(b)(1), then the Court must confirm the plan. See, e.g., 8 COLLIER’S ON BANKRUPTCY ¶ 1325.11[e] (16th ed. 2016) ("If an objection to confirmation is filed under section 1325(b)(1), the objection must be denied when ‘the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim.’ . . . [I]f the plan provides that the claims are to be paid in full, the trustee cannot demand that the debtors devote all of their projected disposable income each month to payment of claims in order to pay them more quickly.").
Even if § 1325(b)(1) provided for a discretionary determination by the Court, the nature of the objection filed by Trustee is inadequate to invoke the § 1325(b)(1) requirements. See, e.g., In re Torres, 193 B.R. 319, 322-23 (Bankr. N.D. Cal. 1996) ("in order for that subsection [§1325(b)(1)(B)] to become applicable to confirmation, an objection to confirmation must be made alleging that a debtor is not devoting all disposable income to the plan for a minimum period of three years."). As a result, even if § 1325(b)(1) provided for a discretionary determination, the standard would be irrelevant in this case.
12:30 PM
Apart from the statutory interpretations problems with the Trustee’s argument, the Court finds that policy and equitable considerations weigh against Trustee’s position. The Court notes that the disposable income requirement is disjunctive: either the debtor must pledge all disposable income to the plan or the debtor must pay unsecured creditors in full. The Trustee does not dispute that Debtor has satisfied the disjunctive test.
Ultimately, the Trustee relies upon the Court’s § 105 equitable powers in support of the request at issue. Rarely will it be the case, however, that the equities will in favor of creating a fixed rule binding for years regardless of changes in circumstances. The review of a proposed plan modification is generally a highly equitable endeavor that emphasizes the totality of the circumstances. Replacing that equitable analysis with a rigid rule not provided for by the Code is simply inequitable.
The Court does agree, however, that a plan term requiring Debtors in a 100% plan to have to account for excess disposable income, in the even they later file a motion to modify, is of benefit.
APPEARANCES REQUIRED.
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
MOVANT: SIMON E WILLIAMS
From: 12/19/17, 12/21/17 EH
Docket 4
Service: Proper Opposition: None
The Court is inclined to DENY the motion. First, notice to the law firm that represented the secured creditor (the primary party at whom the motion is directed) does not include the handling lawyers’ names. As such notice is problematic as it will be delayed getting into the proper hands. Second, the prior case was not dismissed because of an ordinary payment default, as the motion implies, but because of failure to turn over tax refunds. Third, Debtor does not need the stay to seek a loan modification. Last, any equity in the Debtor’s residence will be recovered, on sale by the Trustee (not the Debtor) for the benefit of the estate, and the Trustee has not joined this request. Thus, Debtor has failed to rebut the presumption of lack of good faith as to U.S. Bank pursuant to § 362(c)(3)(C)(ii).
APPEARANCES REQUIRED.
Debtor(s):
Simon E. Williams Represented By Jenny L Doling
12:30 PM
Movant(s):
Summer M Shaw
Simon E. Williams Represented By Jenny L Doling Jenny L Doling Summer M Shaw Summer M Shaw
Trustee(s):
Karl T Anderson (TR) Represented By Brandon J Iskander
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Oracio Rosales Hernandez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jules A Nelson Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Wanny Chansy Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eddie Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Martha Garcia Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Peralta Velasquez Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
David H Yopp Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Samuel Garcia Represented By
James Geoffrey Beirne
Joint Debtor(s):
Claudia Garcia Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eduardo Galvan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eri A. Doulos Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Kalake Monisoni Toutai Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Guillermo Zamudio Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Vaughn Stevens Represented By Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Nereeka Tamar Haynes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Alvin Leo Eckert Jr. Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Timothy G Klepeis Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Misti Gory Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Amanda Martinez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Herman Owen Samuels Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Isaias Solano Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Caesar A Rodriguez Represented By Allan O Cate
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Leonel Villa Represented By
Luis G Torres
Joint Debtor(s):
Lucila Pineda Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Guadalupe Lopez Represented By David Lozano
Joint Debtor(s):
Margarita Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Rex Thomas Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Scott Lawrence Represented By Kevin Tang
Joint Debtor(s):
Anita D Lawrence Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
David Allen Rose Jr. Represented By Dana Travis
Joint Debtor(s):
Karen Sue Rose Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 79
- NONE LISTED -
Debtor(s):
David Sandoval Represented By
Bryant C MacDonald
Joint Debtor(s):
Mary Celine Sandoval Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 71
On September 30, 2014, Gustavo Brito ("Debtor") filed a Chapter 13 voluntary petition. On November 20, 2014, Debtor’s Chapter 13 plan was confirmed. The mandatory Chapter 13 form plan contains a provision (Section V.H) which states: "The Debtor will pay timely all postconfirmation tax liabilities directly to the appropriate taxing authorities as they become due."
Since confirmation the Trustee has filed three motions to dismiss, all of which were ultimately resolved. Additionally, the Chapter 13 plan has been modified once. On February 23, 2018, the California Department of Tax & Fee Administration ("CDTFA") filed a motion to dismiss or convert to Chapter 7 on the basis that Debtors had not paid their postconfirmation taxes. The Court notes that the motion was served on Debtors’ attorney, but was not served on Debtors.
The Court will continue the matter for CDTFA to serve the motion on Debtors.
12:31 PM
Regarding the merits, the Court notes that 11 U.S.C. § 1307(c)(6) provides for dismissal or conversion for cause, which is defined to include "material default by the debtor with respect to a term of a confirmed plan." Here, the Court notes that Debtors’ confirmed plan provided that all postconfirmation tax liabilities were to be timely paid. CDTFA has provided evidence that Debtor has accrued $19,888.54 in post- petition tax liabilities which constitutes a material default satisfying § 1307(c)(6).
Because Debtors do not appear to have meaningful unencumbered, unexempt assets, this Court would be inclined to dismiss the case rather than convert it to Chapter 7.
The Court is inclined to CONTINUE the matter to April 19, 2018 at 12:30 p.m. for proper service of the motion on Debtors.
APPEARANCES REQUIRED.
Debtor(s):
Gustavo Brito Represented By Freddie V Vega
Movant(s):
California Department of Tax and Represented By
Suman Mathews
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 100
- NONE LISTED -
Debtor(s):
Rula Nino Represented By
Devin Sawdayi
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 71
On December, 2014, William & Kathie Meineke ("Debtors") filed a Chapter 13 voluntary petition. On February 9, 2015, Debtors’ Chapter 13 plan was confirmed. The mandatory Chapter 13 form plan contains a provision (Section V.H) which states: "The Debtor will pay timely all postconfirmation tax liabilities directly to the appropriate taxing authorities as they become due."
Since confirmation the Trustee has filed five motions to dismiss, all of which were ultimately resolved. Additionally, the Chapter 13 plan has been modified twice. On January 10, 2018, the California Franchise Tax Board ("CFTB") filed a motion to dismiss or convert to Chapter 7 on the basis that Debtors had not paid their postconfirmation taxes. The Court notes that the motion was served on Debtors’ attorney, but was not served on Debtors.
12:31 PM
The Court will continue the matter for CFTB to serve the motion on Debtors.
Regarding the merits, the Court notes that 11 U.S.C. § 1307(c)(6) provides for dismissal or conversion for cause, which is defined to include "material default by the debtor with respect to a term of a confirmed plan." Here, the Court notes that Debtors’ confirmed plan provided that all postconfirmation tax liabilities were to be timely paid. CFTB has provided evidence that Debtors’ have yet to satisfy their 2014, 2015 and 2016 tax liabilities which constitutes a material default satisfying § 1307(c)(6).
Because Debtors do not appear to have meaningful unencumbered, unexempt assets, this Court would be inclined to dismiss the case rather than convert it to Chapter 7.
The Court is inclined to CONTINUE the matter to March 8, 2017 at 12:30 p.m. for proper service of the motion on Debtors.
APPEARANCES REQUIRED.
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Movant(s):
FRANCHISE TAX BOARD Represented By Suman Mathews
12:31 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 71
- NONE LISTED -
Debtor(s):
Bennea Cynthia Travis Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 54
- NONE LISTED -
Debtor(s):
Carol Elizabeth Tenney Represented By David Lozano
Trustee(s):
Todd A. Frealy (TR) Pro Se
12:31 PM
Docket 102
- NONE LISTED -
Debtor(s):
Pablo Javier Solis Jr. Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Norma Alicia Solis Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Arturo Cisneros (TR) Pro Se
12:31 PM
Docket 55
- NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Luis G Torres
Joint Debtor(s):
Angelica Gonzalez Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 96
- NONE LISTED -
Debtor(s):
ROBERT A HAGUE Represented By Manfred Schroer
Joint Debtor(s):
DIANNE L HAGUE Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 64
- NONE LISTED -
Debtor(s):
Nicholas Asamoa Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 66
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 76
- NONE LISTED -
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 34
- NONE LISTED -
Debtor(s):
Ronald A Waters Represented By Paul Y Lee
Joint Debtor(s):
Trisha Waters Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 51
- NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 36
- NONE LISTED -
Debtor(s):
Ramon Gabriel Alvarez Represented By Devin Sawdayi
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 38
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 40
- NONE LISTED -
Debtor(s):
Ernesto Sanchez Represented By Jerry Rulsky
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 73
- NONE LISTED -
Debtor(s):
Juan Manuel Plascencia De La Torre Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
2:30 PM
(1) Scheduling a hearing inappropriately late; (2) Filing poor pleadings; and (3) Not appearing in court despite being ordered to do so
EH
Docket 27
- NONE LISTED -
Debtor(s):
Leonel Villa Represented By
Luis G Torres
Joint Debtor(s):
Lucila Pineda Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 39
3/28/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee, have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 3,360 Trustee Expenses: $ 772.23
Accountant Fees: $ 1,587 Accountant Costs:$ 232.60
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Patricia Chaton Represented By
Lorene L Mies - DISBARRED -
Trustee(s):
Charles W Daff (TR) Represented By
11:00 AM
Lezzlie E Hornsby
11:00 AM
EH
Docket 23
On July 17, 2009, Marcin & Laura Rozpedski ("Debtors") filed a Chapter 7 voluntary petition. On December 16, 2009, the case was closed without entry of discharge because Debtors did not file the required financial management court certificate.
On January 23, 2018, the case was reopened upon Debtors’ motion. On February 22, 2018, Marcin Rozpedski ("Marcin") filed his certification about a financial management course, although the Court notes that no such certificate was filed for Laura Rozpedski. It would appear that Debtors have since separated.
On March 9, 2018, Debtors filed a motion for entry of order directing the Clerk of Court to enter the Debtor’s discharge retroactively dated to October 20, 2009. Marcin asserts that he was not informed by his attorney of the requirements to complete a financial management course because his former attorney’s office burned down.
As of the petition date, Debtor had an outstanding judgment owed to Ford Motor
11:00 AM
Credit Co. LLC ("Creditor"). Approximately six months before the petition date, Creditor recorded an abstract of judgment in Riverside County, although Marcin asserts he did not own any real property in Riverside County at that time. Later, in September 2013, Marcin acquired real property in Riverside County. In December 2017, Creditor applied for an application for renewal of judgment.
By the instant motion, Debtor requests: (1) the retroactive entry of Marcin’s discharge; (2) a declaration by the Court that Creditor’s renewal of judgment is void; and (3) a declaration that Creditor’s abstract of judgment is void as to post-petition acquired property.
The Court will first summarily address Debtor’s third request. The Court notes that pursuant to FED. R. BANKR. P. Rule 7001(2), a proceeding to determine the validity, priority, or extent of a lien or other interest in property requires an adversary proceeding. While the requirement of an adversary proceeding may be waivable in certain circumstances, here Creditor has not responded to the instant motion. In such circumstances, the Court cannot deem Creditor to have waived the requirement of an adversary proceeding. Therefore, the Court will deny Debtor’s request for an order declaring the judgment lien of Creditor to be void.
Marcin also requests that his discharge be entered retroactively pursuant to 11 U.S.C.
§ 105. Marcin has not provided any case law supporting the Court’s exercise of equitable powers in this fashion. The Court’s own review of the case law identifies few cases where a Court has contemplated the retroactive entry of discharge. See, e.g., In re Recile, 496 F.2d 675, 680 (5th Cir. 1974) (nunc pro tunc discharge only appropriate when discharge not entered wholly because of clerical mistake); Matter of Pilar Cordova Antuna, 45 B.R. 271, 277 (Bankr. W.D. Mo. 1985) (same). Here, discharge was not entered in 2009 due to the error of Debtors, and, as a result, the standard is clearly not satisfied.
11:00 AM
Nevertheless, it is worth noting that the paucity of case law on the issue is likely a result of the fact that the date that discharge is entered would seem to be legally immaterial. Regardless of the entry date of the discharge, the discharge will operate to absolve a debtor from in personam liability on pre-petition debts. The situation becomes murkier, however, where a party has an abstract of judgment that has not attached to any real property (and the claim is therefore unsecured), the case is closed, real property is acquired by the judgment defendant (now the claim is secured), and then the case is reopened to seek entry of a discharge. In this narrow circumstance, it would appear that the date of the entry of discharge is potentially material.
Nevertheless, in this circumstance, as noted above, Marcin has failed to establish grounds for the entry of discharge retroactive to more than eight years ago.
The Court is inclined to GRANT the motion, only to the extent of issuing a discharge now (not retroactive) as to Marcin only.
APPEARANCES REQUIRED.
Debtor(s):
Marcin Rozpedski Represented By Gary Swanson Summer M Shaw Jenny L Doling
Joint Debtor(s):
Laura M Rozpedski Represented By Gary Swanson Summer M Shaw
11:00 AM
Movant(s):
Marcin Rozpedski Represented By Gary Swanson Summer M Shaw Jenny L Doling
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
11:00 AM
From: 2/14/18 Also #4
EH
Docket 521
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
EH
Docket 542
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
EH
Docket 12
On August 31, 2016, Jay Goodman ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a Chapter 7 discharge, and the next day the case was closed.
On February 12, 2018, Debtor filed a motion for an order to show cause why Delia Moya ("Moya") should not be held in civil contempt. On February 27, 2018, the Court entered an order to show cause (the "OSC") and set a hearing on the matter. On March 14, 2018, Moya filed her response to the OSC, and, on March 21, 2018, Debtor filed a reply.
SUMMARY OF ARGUMENTS
Debtor argues that Moya has violated the discharge injunction. Debtor and Moya were formerly married. On April 22, 2015, during the court of their dissolution proceedings, it appears that the family law court entered an earnings assignment order
11:00 AM
whereby Moya would receive 50% of Debtor’s social security benefits. On May 10, 2016, a modified earning assignment (the "EOA") order was filed. That same day Debtor and Moya entered into a marital settlement agreement (the "MSA"). The MSA contained a provision which stated, in relevant part, that: "Husband owes Wife certain monies with respect to spousal support arrears, court-ordered attorney fees, and court- ordered sanctions which, with interest, total approximately $69,000." The crux of Debtor’s argument appears to be that at least part of the amount identified is dischargeable in bankruptcy. The crux of Moya’s opposition is that the entire debt is nondischargeable either through the operation of 11 U.S.C. § 523(a)(5) or 11 U.S.C. § 523(a)(15).
After reviewing Debtor’s motion, Moya’s response, and Debtor’s reply, the Court is left with the firm impression that Debtor was unaware of the operation of 11 U.S.C.
§ 523(a)(15) when the instant motion was filed. 11 U.S.C. §523(a)(15) states:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with the State or territorial law by a
11:00 AM
governmental unit;
While Debtor argues in his motion that part of the debt created by the MSA is not a domestic support obligation, §523(a)(15) eliminates the need to determine whether all components of the debt at issue are actually domestic support obligations. Until 2005, bankruptcy courts were required to apply a balancing test to determine whether a debt of the type listed in § 523(a)(15) was dischargeable; additionally, the debt was automatically discharged in the absence of an adversary proceeding. See generally COLLIER ON BANKRUPTCY ¶ 523.23 (16th ed. 2009) (briefly discussing history of § 523(a)(15)). As a result, Debtor’s motion contains many references to now obsolete case law which applied the incorrect standard. Moya has pointed out this statutory change in her opposition, and Debtor has not advanced a new legal argument in his reply. It is clear that the entirety of the debt owed to Moya, Debtor’s ex-spouse, as part of the Marital Settlement Agreement, constitutes a debt owed to a former spouse in connection with a separation agreement. Therefore, to the extent the debt is not non- dischargeable by operation of 11 U.S.C. § 523(a)(5), it is certainly non-dischargeable by operation of 11 U.S.C. § 523(a)(15).
To the extent that Debtor requests reformation or cancellation of the EAO or MSA, this request is beyond the Court’s jurisdiction. A debtor cannot request relief pursuant to non-bankruptcy law in a closed case. See 28 U.S.C. § 157 (identifying four categories of bankruptcy court jurisdiction).
To the extent that Moya requests certain sanctions against Debtor for bringing the instant motion, the Court notes that Moya’s opposition is not the appropriate mechanism for bringing such a request. See FED. R. BANKR. P. Rule 9011(c)(1). The Court also notes that Local Rule 9020 specifies the procedure to be followed when a party requests an order to show cause. Local Rule 9020(b) provides that a responding party shall have seven days to file a written objection. Local Rule 9020(d)(1) provides that if a written objection is not filed, "the court may conclude that there is no objection to issuance of the order to show cause." Here, Moya was served with Debtor’s motion for contempt. And the Court waited fifteen days between entering the order to show cause, during which period Moya did not file any written objection.
While it may be fair to characterize Debtor’s motion as not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law," the Court also notes that a timely response to the motion by Moya would have
11:00 AM
triggered earlier Court review of the merits and significantly mitigated costs.
The Court is inclined to VACATE the OSC.
APPEARANCES REQUIRED.
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Movant(s):
Jay J. Goodman Represented By Christopher Hewitt
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
Complaint by Cleo Sonnenfeld against Joshua C Richardson. Case No. RIC 1700456]; Attachments: # 1 Notice of Status Conference re Removal of Action Nature of Suit: 01 - Determination of removed claim or cause
EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:16-01310 Swift Financial Corporation d.b.a. Swift Capital v. Castillo
From: 5/3/17, 9/13/17, 11/8/17, 1/31/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Francisco Javier Castillo Represented By Joseph M Tosti
Defendant(s):
Francisco Javier Castillo Pro Se
Plaintiff(s):
Swift Financial Corporation d.b.a. Represented By
Lazaro E Fernandez
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:17-01205 PRINGLE v. Rizzo et al
FROM: 11/29/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Scott Leigh Baumann Represented By Jenny L Doling
Defendant(s):
Michael R Rizzo Pro Se
Linda M Rizzo Pro Se
Joint Debtor(s):
Holly Lynn Baumann Represented By Jenny L Doling
Plaintiff(s):
JOHN P PRINGLE Represented By Carmela Pagay
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
2:00 PM
Adv#: 6:17-01121 Smedman et al v. STATE BOARD OF EQUALIZATION et al
Docket 16
On March 10, 2014, Craig Smedman & Veronica Wilkins (collectively, "Plaintiffs"; individually, "Smedman" and "Wilkins") filed a Chapter 7 voluntary petition. On August 12, 2014, Plaintiffs received a Chapter 7 discharge. On October 28, 2015, the State Board of Equalization filed a proof of claim in the amount of $155,734.68 ("Claim 13"), of which $127,905.25 was identified as a priority claim. On April 15, 2016, the case was closed.
On May 25, 2017, the case was reopened. On June 23, 2017, Plaintiffs filed a complaint against SBE. The complaint contains two causes of action: (1) declaratory relief; and (2) a request for an injunction.
Due to issues with the service of the complaint, SBE’s answer was not filed until December 18, 2017. On January 23, 2018, SBE moved for summary judgment. On March 7, 2018, Plaintiffs filed their opposition to SBE’s motion for summary judgment.
2:00 PM
ARGUMENTS
Plaintiff’s complaint is somewhat confusing. Paragraph 9 of the complaint states: "An actual and genuine controversy exists as to whether Plaintiff’s/Debtors’ position that any claim against them by the Defendant is time barred or discharged, in that Plaintiffs claim that any such claim by Defendant is in fact time barred and discharged, and Defendant disputes such contention." Paragraph 10 of the complaint states, in pertinent part: "Plaintiffs seek an adjudication that any claim by Defendant is time barred, discharged, and that the automatic stay and discharge stay prevents any alleged collection efforts. Plaintiffs seek a specific ruling by his Court that any such claim by Defendant is discharged and can never been enforced."
In its motion for summary judgment, the SBE argues that it is not the proper party in this lawsuit, but, rather the named defendant should have been the California Department of Taxes and Fees Administration ("CDTFA"). Furthermore, SBE argues that the complaint fails to allege a violation of the automatic stay or the discharge injunction. Regarding the automatic stay, SBE asserts that they did not take any actions while the automatic stay was in effect and, even if they had issued a notice of assessment while the automatic stay was operative, that notice is excepted from the automatic stay. Regarding the discharge injunction, SBE asserts that its claim is non- dischargeable.
In Plaintiffs’ opposition, Plaintiffs argue that the SBE’s decision to answer the complaint should estop SBE from arguing that it is not the property defendant, and, alternatively, that Plaintiff should be granted leave to amend the complaint.
Furthermore, Plaintiffs identifies certain actions by SBE which it contends constitute a violation of the automatic stay. Plaintiffs also argue that: "Neither Defendant was a ‘responsible person’ to impose personal liability for sales taxes under Revenue and Taxation Code Section 6829."
2:00 PM
As a preliminary matter, Plaintiffs also characterize Claim 13 as being untimely, although it is not clear how the characterization relates to their causes of action. If a claim is filed late (or not at all), the holder of the claim simply waives their right to any disbursements made by the trustee. If such a claim is non-dischargeable, the claim would not be "time barred" by reason of its having been filed late (or not at all) in the bankruptcy case. In any event, the claim was not filed late. The Trustee’s notice of assets [Dkt. No. 21] identifies a government claims bar date of January 15, 2016.
Plaintiffs and SBE appear to disagree about whether Claim 13 was discharged. 11
U.S.C. § 523(a)(1)(A) states:
A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt –
for a tax or a custom duty –
of the kind and for the periods specified in section 507(a)(3) or 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed;
11 U.S.C. § 507(a)(8)(A)(i) states:
The following expenses and claims have priority in the following order:
Eight, allowed unsecured claims of government units, only to the extent that such claims are for –
a tax on or measured by income or gross receipts for a taxable year ending on or before the date of the filing of the petition –
for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition;
2:00 PM
SBE argues that its tax claims falls within § 507(a)(8)(A)(i).1 Presumably, Plaintiffs believe Claim 13 was not discharged, although that is not actually asserted in Plaintiffs’ opposition.
SBE correctly points out that the Ninth Circuit has previously held that the type of tax assessed here (responsible person liability)2 is a "tax" for purposes of § 523(a)(1) and is measured on "gross receipts" for purposes of § 507(a)(8). See In re Ilko, 651 F.3d 1049, 1050 (9th Cir. 2011). Plaintiffs have not presented any legal argument to the contrary.
Next the Court must evaluate whether the applicable tax returns were due "after three years before the date of the filing of the petition." 11 U.S.C. § 507(a)(8)(A)(i). As evidenced by SBE’s proof of claim and the notice of determination attached to the instant motion, SBE originally asserted a priority claim for taxes due during the period October 1, 2010 to March 31, 2012.
CAL. REV. & TAX. CODE § 6452(a) provides that:
(a) On or before the last day of the month following each quarterly period of three months, a return for the preceding quarterly period shall be filed with the board in the form as prescribed by the board, which may include, but not be limited to, electronic media. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.
Therefore, all of the priority part of Claim 13 fits within § 507(a)(8)(A)(i), with the exception of the tax due for the final quarter of 2010. SBE’s declaration, however, asserts that SBE made a legal adjustment to the liability of Plaintiffs to discharge the tax due during the final quarter of 2010. SBE, however, has demonstrated that the remainder of the priority portion of Claim 13 was non-dischargeable. Plaintiffs have
2:00 PM
not advanced any legal argument to the contrary.
Plaintiffs’ argument that they were not proper parties to be assessed "responsible person liability" under CAL. REV. & TAX. CODE § 6829 misses the operative issue. This argument does not go to whether the claim of SBE has been discharged, but, instead, goes to whether SBE has a claim at all. Regardless of whether the assertion of Plaintiffs is accurate, the claim as asserted by SBE fits within the non-dischargeability provision of § 507(a)(8)(A)(i). As a result, the claim cannot have been discharged, and there cannot have been a violation of the discharge injunction.
Because this Court has concluded that the claim of SBE is not "unenforceable, time- barred, and otherwise discharged," it is inappropriate to issue an injunction to prevent SBE from seeking its legal remedies.
The Court is inclined to GRANT summary judgment in favor of SBE. As to the assessed liability for the final quarter of 2010, SBE to discuss including language in the judgment as to those taxes having been discharged.
APPEARANCES REQUIRED.
Debtor(s):
Garrick Craig Smedman Represented By Neil C Evans
Defendant(s):
STATE BOARD OF Pro Se
California Department of Tax and Represented By
Matthew C. Heyn
2:00 PM
Joint Debtor(s):
Veronica Lee Wilkins Represented By Neil C Evans
Movant(s):
California Department of Tax and Represented By
Matthew C. Heyn
Plaintiff(s):
Craig Smedman Represented By Neil C Evans
Veronica Lee Wilkins Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
12:30 PM
From: 2/22/18 Also #2
EH
Docket 53
On February 22, 2018, the Court issued its tentative ruling and continued the hearing on the Debtor’s Motion to permit the Debtor to file a response to the Court’s tentative ruling.
The Debtor filed her response on March 15, 2018 (the "Response").
In her Response to the Court’s Tentative Ruling of February 22, 2018 (the "TR"), the Debtor responds that she seeks to vacate dismissal in order to "correct the record". The Debtor’s Response, however, does little more than assert an incomprehensible argument under Rule 60(b)(6) regarding the "Y2K Bug" and then goes on to again argue that fraud has occurred. The Response does not address the Rule 60(c) time limit on a Rule 60(b) motion based on fraud. Nor does the Response provide any evidence or argument to warrant vacating the dismissal under Rule 60(b) (6).
Finally, the Debtor’s Response cites to alleged violations of federal criminal and/or civil laws by Wells Fargo and Clear Recon Corp. Here, even were the Court to conclude that the Debtor’s allegations are true and that Wells Fargo and Clear Recon Corp made misrepresentations or committed fraud, the bankruptcy case was dismissed for reasons independent of any issues related to Wells Fargo and Clear Recon Corp.
12:30 PM
Thus, the alleged violations do not of themselves provide support for Debtor’s Motion to Vacate Dismissal. If the Debtor believes Wells Fargo and Clear Recon Corp may have criminal or civil liability then she is free to pursue actions against these entities in federal district court.
Finally, on March 8, 2018, Wells Fargo and Clear Recon Corp filed their opposition to the Debtor’s Motion. Their Opposition reiterates the points raised by the Court’s TR that the Motion was not properly served and that relief is not warranted under Rule 9024. Given the service issues with the Motion, the Court has considered the opposition of Wells Fargo and Clear Recon Corp and is inclined to DENY the Motion for the reasons stated in today’s tentative ruling, in the February 22, 2018 TR, in the Opposition of Wells Fargo and Clear Recon Corp, and in the Trustee’s Comments.
02/22/2018
Background:
On July 18, 2016, Conchita Ang ("Debtor") filed for chapter 13 relief. Rod Danielson is the duly appointed chapter 13 trustee ("Trustee").
On October 12, 2016, the Court granted the Motion of the United States Trustee to dismiss the Debtor’s case with a re-filing bar, thereby dismissing the Debtor’s case (the "Dismissal Order")
The Debtor subsequently appealed the dismissal of the case to the Bankruptcy Appellate Panel (the "BAP"). On August 10, 2017, the BAP affirmed the order of this Court dismissing the Debtor’s case as a bad faith filing.
On February 1, 2018, the Debtor filed a Motion to Vacate the Dismissal Order (the "Motion"). On February 5, 2018, the Trustee filed comments recommending that the Court deny the Debtor’s Motion.
Applicable Law: FRBP 9024, FRCP 60(b)
Discussion:
12:30 PM
Under FRBP 9024 (incorporating FRCP 60(b)), a court may relieve a party
from judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief from operation of judgment. FRBP 9024.
The Debtor does not specify under which subsection of Rule 60(b) she is moving. However, the allegations in the Motion appear to indicate that the Debtor believes fraud has occurred as to "alleged creditors" Wells Fargo Bank and Clear Recon Corp. Fraud falls within Rule 60(b)(3). Potentially, the Debtor is also alleging that relief is justified based on new evidence discovered during the appeal process which would fall under Rule 60(b)(2). (Motion at ¶5).
As a threshold matter, pursuant to Rule 60(c), a motion under Rule 60(b) that is brought for reasons (1), (2), or (3) cannot be brought more than a year after the entry of the order. FRCP 60(c). Here, more than one year has elapsed since the Dismissal Order was entered on October 12, 2016. Therefore, based on the allegations in the Motion, 60(b)(6) appears to be the only grounds upon which the Dismissal Order could be set aside.
The Ninth Circuit has held that Rule 60(b)(6) should be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment. In re International Fibercom, Inc., 503 F.3d 933, 941 (9th Cir. 2007) (internal citations omitted). Accordingly, a party who moves for such relief "must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with ... the action in a proper fashion. Id.
Here, the Debtor has failed to either (1) demonstrate manifest injustice, or (2) to demonstrate what extraordinary circumstances prevented her from bringing this Motion at an earlier junction. Instead, the timing of the instant Motion appears more likely to reflect the Debtor’s refusal to accept the ruling of the BAP which affirmed this Court’s Dismissal Order. Further, as pointed out by the Trustee, the Debtor’s Motion fails to address the numerous grounds for dismissal delineated in the Court’s Dismissal Order, including the lack of disposable income to fund a chapter 13 plan and the Debtor’s history of skeletal filings. Finally, the Debtor believes she should
12:30 PM
have an opportunity to object to proofs of claim filed in her dismissed case. However, there is no explanation or averment as to how a proof of claim filed in a dismissed case has caused or is causing injury to the Debtor.
In sum, while the Debtor believes she has meritorious grounds for alleging fraud against the "alleged creditors", the Motion fails to demonstrate that the bankruptcy court is the appropriate forum for the Debtor to litigate these disputes with the creditors given that the Debtor’s case has been dismissed and that no evidence has been provided to warrant reinstating the bankruptcy case.
Separately, the Motion appears to seek the issuance of a temporary restraining order. However, LBR 7065 clearly states that a temporary restraining order or preliminary injunction may only be sought as a provision remedy in an adversary proceeding.
In addition to the foregoing, the Court also denies the Motion on the basis of improper service because the Debtor has failed to serve the Motion in accordance with FRBP 7004 as to the alleged creditors.
Tentative Ruling:
Based on the foregoing, the Motion is DENIED in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Conchita C Ang Pro Se
Movant(s):
Conchita C Ang Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
12:30 PM
EH
Docket 56
The Debtor moves the Court for an order removing Rod Danielson as the trustee for her case stemming from an alleged "failure to perform his duties pursuant to … Section 704(a)(5)" by an alleged failure to object to the allowance of an "improper claim", also for "malfeasance of office for gross negligence and willful misconduct."
DISCUSSION
Once appointed, only the bankruptcy court, after notice and hearing, can remove the trustee. 11 U.S.C. § 324; In re Reed, 178 B.R. 817 (Bankr. D. Ariz. 1995) (citing Bernard v. Coyne (In re Bernard ), 31 F.3d 842, 844 (9th Cir.1994)). Section 324 of the Bankruptcy Code provides that a trustee may be removed "for cause." However, the requisite cause for removal of a trustee, as required by § 324, has not been defined in the Bankruptcy Code; rather it must be determined by the courts on a case by case basis. Id. (citing In re Lundborg, 110 B.R. 106, 108 (Bankr.D.Conn.1990); In re Haugen Construction Service, Inc., 104 B.R. 233, 240 (Bankr.D.N.D.1989). The requisite cause has been defined as, " ‘reasons for which the law and sound public policy recognize as sufficient [to] warrant ... removal’ and reasons which ‘relate to and affect the administration of the office [of the trustee] and [which] must be restricted [sic] to something of a substantial nature directly affecting the rights and interests of the public.’ " Baker v. Seeber (In re Baker ), 38 B.R. 705, 707 (D.Md.1983) (affirming and quoting Judge Evans, below). Most case law
12:30 PM
concerning the removal of a trustee involves intentional misconduct or negligence on the part of the trustee in the administration of the estate. Id. Such cause has been interpreted to include when the trustee is not disinterested, where the trustee fails to perform his or her duties or unreasonably delays in the performance of those duties. Lundborg, 110 B.R. at 108 (citations omitted). But, a trustee is not responsible, and therefore should not be removed, for mistakes in judgment where the judgment is both reasonable and discretionary. Reed (citing Mosser v. Darrow, 341 U.S. 267, 272, 71
S.Ct. 680, 682–83, 95 L.Ed. 927 (1951); Lundborg, 110 B.R. at 108).
A Chapter 7 trustee's duties encompass investigating, liquidating, handling and distributing assets of the Chapter 7 estate. See § 704. While a Chapter 13 trustee performs some of the same or similar investigative and fiduciary functions of a Chapter 7 trustee, the work of the Chapter 13 trustee is focused primarily on administration of the Chapter 13 debtor's plan, a very different job. See § 1302. In re Colburn, 231 B.R. 778, 783 (Bankr. D. Or. 1999).
The Debtor’s case was dismissed for various reasons, including the lack of disposable income to fund a chapter 13 plan and the Debtor’s history of skeletal filings (in addition to the fact that, as referenced by the Trustee, the Debtor was not eligible to be a chapter 13 debtor because she had exceeded the debt limits for chapter 13). Here, there was no plan to administer and the Debtor’s case was improperly filed as a chapter 13. Moreover, as indicated by the Trustee, even assuming, arguendo, that the Trustee had any reason to object to the claim that the Debtor disputes, such claim had not been filed at the time of the creditor meeting and due to the dismissal of the case no purpose would have been served by the Trustee’s objection to the claim post- dismissal.
The Debtor’s request for removal of the Trustee is nothing more than a frivolous attack on the Trustee which serves no purpose. The Debtor has failed to identify any "cause" for removal under § 324. Specifically, the Debtor’s motion is unsupported by any facts or evidence to support her allegations that the Trustee acted improperly in declining to object to the proof of claim of Wells Fargo/Clear Recon Corp. Instead, the declaration of the Debtor simply states in conclusory fashion that she believes the Trustee had a duty to "demand and examine the Proof of Claim" and to do so "timely". Instead, the Court finds that given the myriad issues with the Debtor’s case, the Trustee’s judgment that examination of the proof of claim was not
12:30 PM
necessary was both reasonable and within the Trustee’s discretion.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to DENY the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Conchita C Ang Pro Se
Movant(s):
Conchita C Ang Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 41
03/29/2018
Background:
On February 14, 2017 ("Petition Date"), Bruce and Ann Ruggles (collectively, "Debtors") filed for chapter 13 relief. Rod Danielson is the duly appointed trustee ("Trustee"). On March 2, 2018, the Debtors filed objection to Claim No. 6 (the "Objection") filed by the Internal Revenue Service ("IRS").
On March 15, 2018, IRS filed its opposition and response to the Objection ("Opposition").
Applicable Law:
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
12:30 PM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Analysis:
The Debtors objection is that:
The unsecured priority claim of $7,999.80 was an estimated claim when filed; and
The Debtors filed their actual return on April 2, 2017, and the liability based on their return is a reduced amount of $1,498.
The Trustee has paid $1,098.68 on the IRS’s claim, leaving an unpaid balance of $407.32.
On March 8, 2018, the IRS filed an amended proof of claim reducing the amount of its unsecured priority claim to $407.32.
Tentative Ruling
Based on the foregoing, the amendment to the IRS proof of claim resolves the dispute.
12:30 PM
The Motion shall be DENIED as moot.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Movant(s):
Bruce Howard Ruggles Represented By John F Brady
Ann Marie Ruggles Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 25
- NONE LISTED -
Debtor(s):
Bryan Dale Reid Represented By Paul Y Lee
Joint Debtor(s):
Cristi Mishael Reid Represented By Paul Y Lee
Movant(s):
Bryan Dale Reid Represented By Paul Y Lee
Cristi Mishael Reid Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Isaias Solano Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Guadalupe Lopez Represented By David Lozano
Joint Debtor(s):
Margarita Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Litza Maribel Warner Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Luis Fuentes Moreno Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Stephen Francis Wallin Represented By Dana Travis
Joint Debtor(s):
Kathleen Lillian Wallin Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Eugene Emery Wood Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 113
- NONE LISTED -
Debtor(s):
Jacob J Cannon Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Danielle M Cannon Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 135
- NONE LISTED -
Debtor(s):
Robert Wayne Cook Sr. Represented By Steven A Alpert
Joint Debtor(s):
Kelly Danielle Cook Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 60
- NONE LISTED -
Debtor(s):
Mario C Binuya Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Linda Binuya Represented By
Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 59
- NONE LISTED -
Debtor(s):
Robert R. Gentile Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 116
- NONE LISTED -
Debtor(s):
Garan Bales Represented By
Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 50
- NONE LISTED -
Debtor(s):
Ana M. Oliver Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 46
- NONE LISTED -
Debtor(s):
Biani Berlenda Mora Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 29
- NONE LISTED -
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 51
- NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 28
- NONE LISTED -
Debtor(s):
Gary Ramirez Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Christina Faith Ramirez Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18, 3/6/18 EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Debbie Hernandez Rosemary Allen
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 191
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Movant(s):
Wilmington Savings Fund Society, Represented By
Megan E Lees Alexander K Lee Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST, N.A.
EH
Docket 70
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Juanita M Kawakami Represented By Michael Smith Craig K Streed
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US ROF II/BANK NATIONAL ASSOC
From: 1/23/18, 2/27/18 EH
Docket 44
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears and adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Catalina Smith Represented By Luis G Torres
Movant(s):
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees
U.S. ROF II Legal Title Trust 2015- Represented By
Megan E Lees Alexander K Lee Jamie D Hanawalt
10:00 AM
Trustee(s):
Armin M Kolenovic Kelsey X Luu
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST, N.A.
CASE DISMISSED 3/12/18
EH
Docket 53
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael R Totaro
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Kristin A Zilberstein Merdaud Jafarnia Christina J O
Can Guner Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 2/13/18 EH
Docket 67
02/13/2018
Service: Proper Opposition: Yes
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay and GRANT request for relief under ¶3.
APPEARANCES REQUIRED.
Debtor(s):
Brent Duane Larson Represented By Carey C Pickford
Joint Debtor(s):
Sarah Marnet Larson Represented By Carey C Pickford
Movant(s):
U.S. BANK, NATIONAL Represented By April Harriott
10:00 AM
Trustee(s):
Shreena Augustin Seth Greenhill Keith Labell Sean C Ferry
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 56
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BALBOA THRIFT & LOAN
From: 2/27/18 EH
Docket 140
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Movant(s):
Balboa Thrift & Loan Represented By
10:00 AM
Trustee(s):
Keith E Herron
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 39
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Henrico Guillermo Vidales Represented By Yolanda Flores-Burt
Joint Debtor(s):
Guillermina Vidales Represented By Yolanda Flores-Burt
10:00 AM
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
From: 1/9/18, 2/27/18 EH
Docket 31
Service is Proper Opposition: Limited
Parties to provide status of adequate protection discussions, and Debtors to explain why evidence that they are current was not attached to motion.
APPEARANCES REQUIRED.
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
10:00 AM
Movant(s):
WELLS FARGO BANK, N.A. Represented By Brandye N Foreman John Tamburo
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18, 3/6/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 2/13/18, 3/6/18 EH
Docket 23
02/13/2018
Service: Proper Opposition: Yes
Subject to discussions re adequate protection, the Court’s tentative is to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay, GRANT authority to offer loan workout options pursuant to ¶3 of prayer for relief and GRANT relief from the co-debtor stay.
APPEARANCES REQUIRED.
Debtor(s):
Warren Alan Hall Represented By Lionel E Giron
Joint Debtor(s):
Kelly Suzanne Hall Represented By
10:00 AM
Movant(s):
Lionel E Giron
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL SERVICES VEHICLE TRUST
EH
Docket 83
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (d)(2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Alfredo Loera Represented By Paul Y Lee
Joint Debtor(s):
Veronica O Loera Represented By Paul Y Lee
Movant(s):
Financial Services Vehicle Trust Represented By
10:00 AM
Trustee(s):
Bret D. Allen
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: BANC OF CALIFORNIA, NATIONAL ASSOCIATION, DBA BANC HOME LOANS
EH
Docket 24
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot. DENY request under ¶ 14 because there does not appear to be an attached continuation page.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Julian Hernandez Represented By Todd L Turoci
Movant(s):
Banc of California, National Represented By Daniel K Fujimoto
10:00 AM
Trustee(s):
Caren J Castle
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: US NATIONAL ASSOCIATION
EH
Docket 49
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request for relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)
(3) stay. GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jeffrey Elkins Represented By Anthony P Cara
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil Angela M Fowler
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
Docket 71
- NONE LISTED -
Debtor(s):
Julio C. Davila Represented By Michael Jay Berger
Movant(s):
PENNYMAC LOAN SERVICES, Represented By
Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY
EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request for relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)
(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Sandra Lorena Parra Represented By Christopher Hewitt
Movant(s):
Wilmington Savings Fund Society, Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 25
Service is Proper Opposition: None
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Evonne Marie Woodard Represented By Dana Travis
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Tammie Turner Represented By Keith Q Nguyen
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 17
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (4) based on authorized transfers of a fractionalized interest in the property and multiple recent bankruptcy cases affecting the property. DENY request for relief from § 1301(a) stay as moot because there appears to be no co-debtor as that term is used in the statute. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under
¶¶ 2 and 10. DENY requests under ¶¶ 8 and 11 for lack of cause shown.
After considering the Fjeldsted factors, the Court is inclined to ANNUL the automatic stay retroactive to the petition date. The Court notes that the subject property was transferred to Debtor on the petition date and there were multiple previous bankruptcy filings affecting the property. Furthermore, the property and the debt were not scheduled by Debtor and it does not appear that Movant was notified of the bankruptcy filing. Finally, the Court notes there is no opposition from Debtor, which the Court deems to be consent to the relief requested pursuant to Local Rule 9013-(1) (h).
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Charlie W Parker Pro Se
Movant(s):
U.S. Bank National Association, as Represented By
Nancy L Lee
Trustee(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
From: 3/6/18 EH
Docket 7
03/06/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rick Allen Skans Represented By Neil R Hedtke
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jiovana Salinas Robles Pro Se
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: ALLY BANK
EH
Docket 18
- NONE LISTED -
Debtor(s):
Evan Todd Flynn Represented By Emilia N McAfee
Joint Debtor(s):
Elizabeth Flynn Represented By Emilia N McAfee
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Mary Simmons Represented By
James D. Hornbuckle
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION
CASE DISMISSED 3/8/18
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT relief from stay pursuant to § 362(d)(4) based on unauthorized transfers of the property and multiple bankruptcy cases affecting the property. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12.
APPEARANCES REQUIRED.
Debtor(s):
Mercedes Estrada Ayala Pro Se
Movant(s):
FEDERAL NATIONAL Represented By Nichole Glowin
10:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 18
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request for relief pursuant to § 362(d)(4) based on multiple bankruptcy cases affecting the property and Debtor’s failure to properly prosecute the case.
GRANT request for relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12.
APPEARANCES REQUIRED.
Debtor(s):
Yanina Galvan Pro Se
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: GATEWAY ONE LENDING & FINANCE
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Frances E Brand Represented By David Philipson
Movant(s):
Gateway One Lending & Finance Represented By
Austin P Nagel
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 14
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT relief from stay pursuant to § 362(d)(4) based on multiple prior bankruptcies affecting the property. GRANT relief from § 1301(a) co-debtor stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, 10, and 12. DENY requests under ¶¶ 8 and 11 for lack of cause shown. DENY request under ¶ 14 because it does not appear any relief is requested in the continuation page.
APPEARANCES REQUIRED.
Debtor(s):
Mardie Lois Washington Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Edin Estuardo Monterroso Represented By Yolanda Flores-Burt
Joint Debtor(s):
Alma Violeta Monterroso Represented By Yolanda Flores-Burt
Movant(s):
Toyota Motor Credit Corporation, Represented By
10:00 AM
Trustee(s):
Austin P Nagel
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jason A Kendrick Represented By Sundee M Teeple
Joint Debtor(s):
Heather L Kendrick Represented By Sundee M Teeple
10:00 AM
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: COBRA 28 NO. 8, LP
CASE DISMISSED 3/13/18
EH
Docket 10
- NONE LISTED -
Debtor(s):
Carlos Diaz Pro Se
Movant(s):
COBRA 28 NO. 8 LP Represented By Helen G Long
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Christian Bailey Represented By Timothy S Huyck
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: RODOLFO AGUIAR AND IRMA D AGUIAR
EH
Docket 12
The Court is inclined to DENY the motion for improper service. The Court notes that the motion purports to be set on regular notice, but this motion is actually being heard on shortened notice. As a result, the motion leaves notified parties with minimal time to file an objection. Furthermore, secured creditors were not served pursuant to FED. R. BANKR. P. Rule 7004 as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
10:00 AM
Movant(s):
Rodolfo Aguiar Represented By Alla Tenina
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MARC BURNS
EH
Docket 8
The Court is inclined to DENY the motion. The Court notes that secured creditors were not served pursuant to FED. R. BANKR. P. Rule 7004 as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Marc Burns Represented By
D Justin Harelik
Movant(s):
Marc Burns Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: M&M CONSTRUCTION ENTERPRISES INC
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from § 1301(a) stay because this is not a Chapter 13 case. GRANT requests under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Joseph L Gardner Represented By
Anthony Obehi Egbase
Joint Debtor(s):
Laschell D Gardner Represented By
Anthony Obehi Egbase
Movant(s):
M&M Construction Enterprises Inc Represented By
10:00 AM
Trustee(s):
William E Windham
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 28
- NONE LISTED -
Debtor(s):
Lenton T. Hutton Represented By Brian Nomi
Christopher Hewitt
Movant(s):
Lenton T. Hutton Represented By Brian Nomi
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
LLC and Nations Fund I, LLC
(Final Basis) From: 3/6/18 Also #36 & #37 EH
Docket 170
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
11:00 AM
(Final Basis) From: 3/6/18 Also #35 & #37 EH
Docket 171
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
11:00 AM
From: 1/9/18 Also #35 & #36 EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
HOLDING DATE
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17, 1/30/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Also #41 & #42 EH
Docket 303
10/31/2017
The hearing on the Motion is continued to November 28, 2017, at 2:00 p.m. as a holding date.
APPEARANCES WAIVED.
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18
Also #40 & #42 EH
Docket 83
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17, 1/30/18
Also #40 & #41 EH
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
10:00 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Jason James Popken Represented By Terrence Fantauzzi
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Juan Jose Jimenez Represented By Stephen H Darrow
Joint Debtor(s):
Margarita Jimenez Represented By Stephen H Darrow
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Chancity Michelle Bryant Pro Se
Movant(s):
Altura Credit Union Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 32
04/11/2018
BACKGROUND
On January 24, 2010, Scott and Karen Bosco (collectively, the "Debtors") filed their petition for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the Debtors’ estate is an interest in a product liability claim (the "Claim") for alleged economic damages and physical injuries allegedly suffered by the Debtors as a result of a medical device implanted in Debtor, Karen Bosco.
The Trustee seeks to resolve the estate’s dispute with the defendant on the Claim by way of settlement. On March 1, 2018, the Trustee filed his Motion to Approve Compromise under Rule 9019 (the "Motion"). Service was proper and no opposition has been filed.
The Claim is part of complex litigation pending in multiple courts, and part of a confidential, aggregate settlement reached in connection with the litigation. Pursuant to the settlement, the Debtors’ estate would receive a gross settlement amount of
$185,000. However, under the terms of the settlement agreement various payments must be deducted from the settlement prior to disbursement to the Trustee. Exhibit 1 details fees and expenses being deducted from the gross settlement amount. The net amount to the estate is $97,897.75. However this amount may be further reduced by the Debtors should they claim an exemption in the Claim proceeds.
11:00 AM
DISCUSSION
APPROVAL OF COMPROMISE PURSUANT TO RULE 9019
Rule 9019(a) authorizes the bankruptcy court to approve a compromise or settlement on the trustee's motion and after notice and a hearing. The bankruptcy court must consider all "factors relevant to a full and fair assessment of the wisdom of the proposed compromise." Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S. Ct. 1157, 20 L. Ed. 2d 1 (1968). In
other words, the bankruptcy court must find that the settlement is "fair and equitable" in order to approve it. Martin v. Kane (In re A & C Props.), 784 F.2d 1377, 1381 (9th Cir. 1986).
In conducting this inquiry, the bankruptcy court must consider the following
factors:
Id.
(a) the probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
The bankruptcy court enjoys broad discretion in approving a compromise
because it "is uniquely situated to consider the equities and reasonableness [of
it] " United States v. Alaska Nat'l Bank (In re Walsh Construction, Inc.), 669 F.2d
1325, 1328 (9th Cir. 1982). As stated in A & C Props.:
The purpose of a compromise agreement is to allow the trustee and the creditors to avoid the expenses and burdens associated with litigating sharply contested and dubious claims. The law favors compromise and not litigation for its own sake, and as long as the bankruptcy court amply considered the various factors that determined the reasonableness of the compromise, the court's decision must be affirmed.
11:00 AM
Id. (citations omitted).
On the other hand, even though the bankruptcy court has wide latitude in approving compromises, its discretion is not completely unfettered. See Woodson v. Fireman's Fund Ins. Co. (In re Woodson), 839 F.2d 610, 620 (9th Cir. 1988). The trustee bears the burden of proving to the bankruptcy court that the settlement is fair and equitable and should be approved. In re A&C Props., 784 F.2d at 1382.
Sufficiency of Evidence
In the instant case, the Trustee has not provided a copy of the settlement agreement. Moreover, in October 2017, this Court approved the employment of special counsel Alystock Witkin Kreis & Overholtz, PLLC; The Pulaski Law Firm, PLLC; Osborne & Associates; and Anapol Weiss as special counsel. Notwithstanding, the employment of special counsel to evaluate the merits of the case on behalf of the estate, the Motion fails to include a declaration of special counsel indicating to this Court why it should find that a confidential settlement agreement provides a greater benefit to the estate than litigation of the claims on behalf of the estate.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to CONTINUE the hearing on the Motion to provide the Trustee with an opportunity to supplement the Motion with additional evidence to support the Court’s ability to make a "full and fair assessment" that the proposed compromise is fair and reasonable.
APPEARANCES REQUIRED. Telephonic appearance is authorized.
Debtor(s):
Scott Leon Bosco Represented By Richard H Travis
11:00 AM
Dana Travis
Joint Debtor(s):
Karen Lee Bosco Represented By Richard H Travis Dana Travis
Movant(s):
Robert Whitmore (TR) Represented By Justin Witkin
Trustee(s):
Robert Whitmore (TR) Represented By Justin Witkin
11:00 AM
Docket 70
04/11/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 1,786.27 |
Trustee Expenses: | $ 44.76 |
Attorney Fees: | $11,979.97 |
Attorney Costs: | $316.10 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Laureen Martha Harley Represented By
James M Powell - DISBARRED - Michael H Raichelson
11:00 AM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Docket 40
04/11/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 2,000 |
Trustee Expenses: | $ 47.42 |
Attorney Fees: | $6,082.50 |
Attorney Costs: | $418.16 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Sherrill Fuller Pro Se
Joint Debtor(s):
Jeffrey Fuller Pro Se
11:00 AM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui
Melissa Davis Lowe
11:00 AM
EH
Docket 143
On October 20, 2015 ("Petition Date"), Ann Lee Eid-Brooks and Darrell Edward Brooks, Jr. (collectively, "Debtors") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 27 (the "Objection") of San Diego County Treasurer – Tax Collector. ("County").
Trustee asserts that the County filed a proof of claim asserting a secured claim for real property taxes. Trustee requests that unless the County files an amended claim, that an order be entered allowing the claim as fully secured only, which shall not share in any distribution.
Based on the foregoing, including the lack of opposition or response from the County, the Objection is SUSTAINED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Ann Lee Eid-Brooks Represented By Vincent Renda
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams
11:00 AM
EH
Docket 142
On October 20, 2015 ("Petition Date"), Ann Lee Eid-Brooks and Darrell Edward Brooks, Jr. (collectively, "Debtors") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 22 (the "Objection") of Generator Services., Co. ("GSC"). The Objection calls into question the liability of the Debtors for Claim #22.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
11:00 AM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Trustee reviewed Claim #22 and has indicated that the supporting documentation names Stringer Industries, Inc., the Debtors’ corporation as the party owing the debt. GSC has not responded to the Objection. Here, the Trustee’s Objection sufficiently calls into question whether the Debtors are personally liable for the debt of GSC and GSC for its part has failed to meet its burden to demonstrate that the Debtors are liable.
Based on the foregoing, including the lack of opposition or response from GSC, the Objection is SUSTAINED and Claim #22 is disallowed in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Ann Lee Eid-Brooks Represented By Vincent Renda
11:00 AM
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams
11:00 AM
EH
Docket 141
On October 20, 2015 ("Petition Date"), Ann Lee Eid-Brooks and Darrell Edward Brooks, Jr. (collectively, "Debtors") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 21 (the "Objection") of Powertrip Rentals, LLC ("Powertrip"). The Objection calls into question the liability of the Debtors for Claim #21.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who
11:00 AM
must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Trustee reviewed Claim #21 and believing that Powertrip’s claim was for a debt owed by the Debtors’ corporation, contacted Powertrip to seek documentation to support personal liability for the Debtors. Powertrip has not responded to the Trustee or otherwise filed formal response to the Objection. Here, the Trustee’s Objection sufficiently calls into question whether the Debtors are personally liable for the debt of Powertrip and Powertrip for its part has failed to meet its burden to demonstrate that the Debtors are liable.
Based on the foregoing, including the lack of opposition or response from Powertrip, the Objection is SUSTAINED and Claim #21 is disallowed in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Ann Lee Eid-Brooks Represented By
11:00 AM
Vincent Renda
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams
11:00 AM
EH
Docket 140
On October 20, 2015 ("Petition Date"), Ann Lee Eid-Brooks and Darrell Edward Brooks, Jr. (collectively, "Debtors") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 7 (the "Objection") of WAM Software, Inc. ("WAM").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
11:00 AM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Trustee reviewed Claim #7 and believing that WAM’s claim was for a debt owed by the Debtors’ corporation, contacted WAM to seek documentation to support personal liability for the Debtors. WAM provided a response that included invoices made to the Debtors’ corporation. Based on the documentation provided by WAM, WAM has failed to prove that validity of its claim in that it has not established personal liability of the Debtors.
Based on the foregoing, including the lack of opposition or response from WAM, the Objection is SUSTAINED and Claim #7 is disallowed in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Ann Lee Eid-Brooks Represented By Vincent Renda
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams
11:00 AM
EH
Docket 139
On October 20, 2015 ("Petition Date"), Ann Lee Eid-Brooks and Darrell Edward Brooks, Jr. (collectively, "Debtors") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 4 (the "Objection") of the Riverside County Tax Collector ("County").
Trustee asserts that the County filed a proof of claim asserting a secured claim for real property. Trustee requests that unless the County files an amended claim, that an order be entered allowing the claim as fully secured only, which shall not share in any distribution.
Based on the foregoing, including the lack of opposition or response from the County, the Objection is SUSTAINED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Ann Lee Eid-Brooks Represented By Vincent Renda
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams
11:00 AM
EH
Docket 41
04/11/2018
Section 522(f) provides, in pertinent part, that the 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).
Similarly, § 697.340 of the California Code of Civil Procedure provides that an abstract of judgment recorded against real property attaches only to the extent of the judgment debtor's interest in the property. In re Cady, 9th Cir.BAP (Cal.) 2001, 266 B.R. 172, affirmed 315 F.3d 1121. (emphasis added).
The Debtor seeks to avoid four judgment liens on his Property. All but one of the judgments which Debtor seeks to avoid names only "Richard Knowles" as the Defendant. One of the judgments (obtained by Discover Bank) indicates that judgment was entered against "Richard Knowles, et. al." Here, it is not clear from the documentation supporting the Motions, the extent of the Debtor’s interest or whether and to what extent Richard Knowles has an interest in the Property. Assuming that the Property is owned, in part, by Richard Knowles, the Debtor cannot avoid the liens to the extent they have attached to the interest of his co-owner. Further, it appears that the only lien that may have attached to the Debtor’s interest in the Property is the lien of Discover Bank.
11:00 AM
The Court’s tentative ruling is to CONTINUE the hearing on the Motion for the Debtor to provide supplemental evidence regarding (1) the extent of any ownership interest of Richard Knowles in the Property; and (2) evidence regarding whether the Debtor was named as a Defendant in the suit by Discover Bank.
Finally, the Court notes that the motions filed against Dodeka LLC and Arrow Fin Svcs LLC were not served in compliance with FRBP 7004 in that they were not addressed to an officer, and the motion filed against Discover Bank was not served in compliance with FRBP 7004 because the Debtor failed to serve the Discover Bank to the attention of an officer and also failed to serve Discover Bank via certified mail as required under 7004(h).
APPEARANCES REQUIRED.
Debtor(s):
Douglas Alan Knowles Pro Se
Movant(s):
Douglas Alan Knowles Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 39
04/11/2018
Section 522(f) provides, in pertinent part, that the 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).
Similarly, § 697.340 of the California Code of Civil Procedure provides that an abstract of judgment recorded against real property attaches only to the extent of the judgment debtor's interest in the property. In re Cady, 9th Cir.BAP (Cal.) 2001, 266 B.R. 172, affirmed 315 F.3d 1121. (emphasis added).
The Debtor seeks to avoid four judgment liens on his Property. All but one of the judgments which Debtor seeks to avoid names only "Richard Knowles" as the Defendant. One of the judgments (obtained by Discover Bank) indicates that judgment was entered against "Richard Knowles, et. al." Here, it is not clear from the documentation supporting the Motions, the extent of the Debtor’s interest or whether and to what extent Richard Knowles has an interest in the Property. Assuming that the Property is owned, in part, by Richard Knowles, the Debtor cannot avoid the liens to the extent they have attached to the interest of his co-owner. Further, it appears that the only lien that may have attached to the Debtor’s interest in the Property is the lien of Discover Bank.
11:00 AM
The Court’s tentative ruling is to CONTINUE the hearing on the Motion for the Debtor to provide supplemental evidence regarding (1) the extent of any ownership interest of Richard Knowles in the Property; and (2) evidence regarding whether the Debtor was named as a Defendant in the suit by Discover Bank.
Finally, the Court notes that the motions filed against Dodeka LLC and Arrow Fin Svcs LLC were not served in compliance with FRBP 7004 in that they were not addressed to an officer, and the motion filed against Discover Bank was not served in compliance with FRBP 7004 because the Debtor failed to serve the Discover Bank to the attention of an officer and also failed to serve Discover Bank via certified mail as required under 7004(h).
APPEARANCES REQUIRED.
Debtor(s):
Douglas Alan Knowles Pro Se
Movant(s):
Douglas Alan Knowles Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 40
04/11/2018
Section 522(f) provides, in pertinent part, that the 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).
Similarly, § 697.340 of the California Code of Civil Procedure provides that an abstract of judgment recorded against real property attaches only to the extent of the judgment debtor's interest in the property. In re Cady, 9th Cir.BAP (Cal.) 2001, 266 B.R. 172, affirmed 315 F.3d 1121. (emphasis added).
The Debtor seeks to avoid four judgment liens on his Property. All but one of the judgments which Debtor seeks to avoid names only "Richard Knowles" as the Defendant. One of the judgments (obtained by Discover Bank) indicates that judgment was entered against "Richard Knowles, et. al." Here, it is not clear from the documentation supporting the Motions, the extent of the Debtor’s interest or whether and to what extent Richard Knowles has an interest in the Property. Assuming that the Property is owned, in part, by Richard Knowles, the Debtor cannot avoid the liens to the extent they have attached to the interest of his co-owner. Further, it appears that the only lien that may have attached to the Debtor’s interest in the Property is the lien of Discover Bank.
11:00 AM
The Court’s tentative ruling is to CONTINUE the hearing on the Motion for the Debtor to provide supplemental evidence regarding (1) the extent of any ownership interest of Richard Knowles in the Property; and (2) evidence regarding whether the Debtor was named as a Defendant in the suit by Discover Bank.
Finally, the Court notes that the motions filed against Dodeka LLC and Arrow Fin Svcs LLC were not served in compliance with FRBP 7004 in that they were not addressed to an officer, and the motion filed against Discover Bank was not served in compliance with FRBP 7004 because the Debtor failed to serve the Discover Bank to the attention of an officer and also failed to serve Discover Bank via certified mail as required under 7004(h).
APPEARANCES REQUIRED.
Debtor(s):
Douglas Alan Knowles Pro Se
Movant(s):
Douglas Alan Knowles Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 42
04/11/2018
Section 522(f) provides, in pertinent part, that the 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).
Similarly, § 697.340 of the California Code of Civil Procedure provides that an abstract of judgment recorded against real property attaches only to the extent of the judgment debtor's interest in the property. In re Cady, 9th Cir.BAP (Cal.) 2001, 266 B.R. 172, affirmed 315 F.3d 1121. (emphasis added).
The Debtor seeks to avoid four judgment liens on his Property. All but one of the judgments which Debtor seeks to avoid names only "Richard Knowles" as the Defendant. One of the judgments (obtained by Discover Bank) indicates that judgment was entered against "Richard Knowles, et. al." Here, it is not clear from the documentation supporting the Motions, the extent of the Debtor’s interest or whether and to what extent Richard Knowles has an interest in the Property. Assuming that the Property is owned, in part, by Richard Knowles, the Debtor cannot avoid the liens to the extent they have attached to the interest of his co-owner. Further, it appears that the only lien that may have attached to the Debtor’s interest in the Property is the lien of Discover Bank.
11:00 AM
The Court’s tentative ruling is to CONTINUE the hearing on the Motion for the Debtor to provide supplemental evidence regarding (1) the extent of any ownership interest of Richard Knowles in the Property; and (2) evidence regarding whether the Debtor was named as a Defendant in the suit by Discover Bank.
Finally, the Court notes that the motions filed against Dodeka LLC and Arrow Fin Svcs LLC were not served in compliance with FRBP 7004 in that they were not addressed to an officer, and the motion filed against Discover Bank was not served in compliance with FRBP 7004 because the Debtor failed to serve the Discover Bank to the attention of an officer and also failed to serve Discover Bank via certified mail as required under 7004(h).
APPEARANCES REQUIRED.
Debtor(s):
Douglas Alan Knowles Pro Se
Movant(s):
Douglas Alan Knowles Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 84
On March 6, 2017 ("Petition Date"), Armando Morales and Alicia Jimenez (collectively, "Debtors") filed for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). On March 4, 2018, Trustee filed Objection to Claim # 11 (the "Objection") of LVNV Funding, LLC ("LVNV").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the
11:00 AM
claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that Claim #11 should be disallowed as time barred. Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Here, LVNV’s documentation indicates that the last transaction between the Debtors and original creditor took place on October 22, 2008, and that the Claimant charged off the account on May 25, 2009. The Trustee has established that over four years have already lapsed since the last item in the account. Thus, the burden to show the validity of Claim # 11 must shift to LVNV. LVNV, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the
11:00 AM
claimant, the Objection must be sustained.
For the foregoing reasons, the Objection is SUSTAINED as to Claim No. 11. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
AMANDO MORALES Represented By William D Gurney
Joint Debtor(s):
ALICIA MALDONADO JIMENEZ Represented By
William D Gurney
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
11:00 AM
EH
Docket 86
On March 6, 2017 ("Petition Date"), Armando Morales and Alicia Jimenez (collectively, "Debtors") filed for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). On March 4, 2018, Trustee filed Objection to Claim # 12 (the "Objection") of Cavalry SPV I, LLC ("Cavalry").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the
11:00 AM
claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that Claim #12 should be disallowed as time barred. Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Here, Cavalry’s documentation indicates that the last transaction between the Debtors and original creditor took place on September 11, 2008, and that the debt was charged off on April 30, 2009. The Trustee has established that over four years have already lapsed since the last item in the account. Thus, the burden to show the validity of Claim # 12 must shift to Cavalry. Cavalry, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the claimant, the
11:00 AM
Objection must be sustained.
For the foregoing reasons, the Objection is SUSTAINED as to Claim No. 12.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
AMANDO MORALES Represented By William D Gurney
Joint Debtor(s):
ALICIA MALDONADO JIMENEZ Represented By
William D Gurney
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
11:00 AM
EH
Docket 91
On March 6, 2017 ("Petition Date"), Armando Morales and Alicia Jimenez (collectively, "Debtors") filed for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 9 (the "Objection") of Cavalry SPV I, LLC ("Cavalry").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the
11:00 AM
claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that Claim #9 should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, Cavalry’s documentation indicates that the last transaction between the Debtors and original creditor took place on or before May 5, 2009, and that the debt was charged off on April 30, 2009. The Trustee has established that over four years have already lapsed since the last item in the account. Thus, the burden to show the validity of Claim # 9 must shift to Cavalry. Cavalry, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the claimant,
11:00 AM
the Objection must be sustained.
For the foregoing reasons, the Objection is SUSTAINED as to Claim No. 9. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
AMANDO MORALES Represented By William D Gurney
Joint Debtor(s):
ALICIA MALDONADO JIMENEZ Represented By
William D Gurney
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
11:00 AM
EH
Docket 93
On March 6, 2017 ("Petition Date"), Armando Morales and Alicia Jimenez (collectively, "Debtors") filed for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). On March 6, 2018, Trustee filed Objection to Claim # 10 (the "Objection") of LVNV Funding, LLC ("LVNV").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the
11:00 AM
claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that Claim #10 should be disallowed as time barred. Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Here, LVNV’s documentation indicates that the last transaction between the Debtors and original creditor took place on November 17, 2008, and that the debt was charged off on June 23, 2009. The Trustee has established that over four years have already lapsed since the last item in the account. Thus, the burden to show the validity of Claim # 10 must shift to LVNV. LVNV, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the claimant, the
11:00 AM
Objection must be sustained.
For the foregoing reasons, the Objection is SUSTAINED as to Claim No. 10.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
AMANDO MORALES Represented By William D Gurney
Joint Debtor(s):
ALICIA MALDONADO JIMENEZ Represented By
William D Gurney
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
11:00 AM
Docket 102
- NONE LISTED -
Debtor(s):
James Lloyd Walker Pro Se
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
11:00 AM
EH
Docket 74
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
11:00 AM
Finding Purchaser Is A Good Faith Purchaser
[2550 San Gabriel Way #308, Corona, California 92882]
Also #23 EH
Docket 52
BACKGROUND
On November 2, 2016, Jaison Vally Surace ("Debtor") filed a petition for chapter 7 relief. John Pringle is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate is certain real property located at 2550 San Gabriel Way #308 in Corona, CA (the "Property").
On March 20, 2018, the Trustee filed his Motion for Order: (1) Authorizing Sale of Real Property; (2) Approving Overbid Procedure; (3) Approving Payment of Real Estate Brokers Commissions; and (4) Finding Purchaser is a Good Faith Purchaser (the "Motion").
Service of the Motion was proper and no opposition has been filed.
Sale of Estate Property Pursuant to Section 363(b)
The trustee, after notice and a hearing, may sell property of the estate. 11 U.S.C. § 363(b)(1); see also Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 352 (1985). The sale must be in the best interests of the estate and the price must be
11:00 AM
fair and reasonable. In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985);
see also In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991)(sale must have fair/reasonable price, accurate/reasonable notice to creditors and sale made in good faith). The trustee must articulate some "business justification" for selling estate property out of the "ordinary course of business" before the court may approve the transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); In re Ernst Home Ctr., Inc., 209 B.R. 974, 979 (Bankr. W.D. Wash. 1997). Objections to sale that are based on inadequacy of price are often resolved the court ordering an auction, which may occur in open court. Simantrob v. Claims Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 287 (9th Cir. BAP 2005) citing Fed. R. Bankr. P. 6004(f).1
In support of the proposed sale to Billy Mann ("Purchaser"), the Trustee sets forth the following figures and analysis:
Based on these figures, the proposed sale to Purchaser appears reasonable and the Trustee’s business justification for the sale warrants granting of the Motion.
Generally, bidding procedures must be untainted by self-dealing, encourage
11:00 AM
bidding and be fair/reasonable/serve the best interests of the estate. See In re Crown Corp., 679 F.2d 774 (9th Cir. 1982). Here, the Trustee has proposed bidding procedures which require an initial overbid of $5,000 above the proposed purchase price of $289,500, with each additional bid in increments of $1,000, and a deposit as set forth in the Motion. The remaining overbidding procedures are outlined in the Motion. The Trustee’s proposed bidding procedures are reasonable and encourage bidding and are therefore approved.
The proposed sale has been brought in good faith and has been negotiated on an "arms- length" basis. The court, in Wilde Horse Enterprises, set forth the factors in considering whether a transaction is in good faith. The court stated:
‘Good faith’ encompasses fair value, and further speaks to the integrity of the transaction. Typical ‘bad faith’ or misconduct, would include collusion between the seller and buyer, or any attempt to take unfair advantage of other potential purchasers. And, with respect to making such determinations, the
court and creditors must be provided with sufficient information to allow them to take a position on the proposed sale.
Id. at 842 (citations omitted).
Here, the Trustee marketed the Property via his Broker, Neiman Realty, which marketed on the MLS and conducted showings of the Property. The sale appears to be made in good faith.
Section 363(m) provides that "[t]he reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith…." 11 U.S.C. § 363(m).
11:00 AM
The Trustee has provided declarations of himself, the Broker, and the Purchaser which all support the conclusion that the Purchaser has no relationship to the Debtor or to the professionals associated with the case. The evidence warrants a finding that the Purchaser has purchased in "good faith" under § 363(m) should he prevail in his bid for the Property at the hearing.
For the foregoing reasons, the Court is inclined to GRANT the Motion as follows:
Granting the Motion;
Approving the sale of the Property to the Purchaser or successful overbidder;
Finding that the Purchaser, if successful, has purchased in "good faith" (however, should another party be successful in overbidding, the Court shall require a declaration or may be sworn-in to provide evidence of "good faith" at the hearing);
Providing that the Trustee is authorized and empowered to execute and deliver on behalf of the estate any and all documents as reasonably may be necessary to implement the terms of the proposed sale;
Providing that the notice given by the Trustee in connection with the sale and hearing thereon is adequate, sufficient, proper and complies with all applicable provisions of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure;
Approving the overbid procedures;
Authorizing the payment of any unpaid property taxes, the real estate broker’s commissions, and related sale costs directly from escrow; and
Waiving the 14-day stay prescribed by rule 6004(h) of the Federal Rules of Bankruptcy Procedure.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
Finding Purchasers Are Good Faith Purchasers [27 Bella Donaci, Lake Elsinore, California 92532] Also #22
EH
Docket 53
BACKGROUND
On November 2, 2016, Jaison Vally Surace ("Debtor") filed a petition for chapter 7 relief. John Pringle is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate is certain real property located at 27 Bella Donaci, Lake Elsinore, CA 92532 (the "Property").
On March 20, 2018, the Trustee filed his Motion for Order: (1) Authorizing Sale of Real Property; (2) Approving Overbid Procedure; (3) Approving Payment of Real Estate Brokers Commissions; and (4) Finding Purchaser is a Good Faith Purchaser (the "Motion").
Service of the Motion was proper and no opposition has been filed.
Sale of Estate Property Pursuant to Section 363(b)
The trustee, after notice and a hearing, may sell property of the estate. 11 U.S.C. § 363(b)(1); see also Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 352 (1985). The sale must be in the best interests of the estate and the price must be
11:00 AM
fair and reasonable. In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985);
see also In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991)(sale must have fair/reasonable price, accurate/reasonable notice to creditors and sale made in good faith). The trustee must articulate some "business justification" for selling estate property out of the "ordinary course of business" before the court may approve the transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); In re Ernst Home Ctr., Inc., 209 B.R. 974, 979 (Bankr. W.D. Wash. 1997). Objections to sale that are based on inadequacy of price are often resolved the court ordering an auction, which may occur in open court. Simantrob v. Claims Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 287 (9th Cir. BAP 2005) citing Fed. R. Bankr. P. 6004(f).1
In support of the proposed sale to Amgad Rizk and Christine Nasr (collectively, "Purchasers"), the Trustee sets forth the following figures and analysis:
Closing Costs (8%, including 6% broker commission) $29,600 Net Equity for the Estate: $340,400
Based on these figures, the proposed sale to Purchaser appears reasonable and the Trustee’s business justification for the sale warrants granting of the Motion.
Generally, bidding procedures must be untainted by self-dealing, encourage bidding and be fair/reasonable/serve the best interests of the estate. See In re Crown Corp., 679 F.2d 774 (9th Cir. 1982). Here, the Trustee has proposed bidding
11:00 AM
procedures which require an initial overbid of $5,000 above the proposed purchase price of $370,000, with each additional bid in increments of $1,000, and a deposit as set forth in the Motion. The remaining overbidding procedures are outlined in the Motion. The Trustee’s proposed bidding procedures are reasonable and encourage bidding and are therefore approved.
The proposed sale has been brought in good faith and has been negotiated on an "arms- length" basis. The court, in Wilde Horse Enterprises, set forth the factors in considering whether a transaction is in good faith. The court stated:
‘Good faith’ encompasses fair value, and further speaks to the integrity of the transaction. Typical ‘bad faith’ or misconduct, would include collusion between the seller and buyer, or any attempt to take unfair advantage of other potential purchasers. And, with respect to making such determinations, the
court and creditors must be provided with sufficient information to allow them to take a position on the proposed sale.
Id. at 842 (citations omitted).
Here, the Trustee marketed the Property via his Broker, Neiman Realty, which marketed on the MLS and conducted showings of the Property. The sale appears to be made in good faith.
Section 363(m) provides that "[t]he reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith…." 11 U.S.C. § 363(m).
The Trustee has provided declarations of himself, the Broker, and the
11:00 AM
Purchasers which all support the conclusion that the Purchasers have no relationship to the Debtor or to the professionals associated with the case. The evidence warrants a finding that the Purchasers have purchased in "good faith" under § 363(m) should they prevail in their bid for the Property at the hearing.
For the foregoing reasons, the Court is inclined to GRANT the Motion as follows:
Granting the Motion;
Approving the sale of the Property to the Purchasers or successful overbidder;
Finding that the Purchasers, if successful, have purchased in "good faith" (however, should another party be successful in overbidding, the Court shall require a declaration or may be sworn-in to provide evidence of "good faith" at the hearing);
Providing that the Trustee is authorized and empowered to execute and deliver on behalf of the estate any and all documents as reasonably may be necessary to implement the terms of the proposed sale;
Providing that the notice given by the Trustee in connection with the sale and hearing thereon is adequate, sufficient, proper and complies with all applicable provisions of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure;
Approving the overbid procedures;
Authorizing the payment of any unpaid property taxes, the real estate broker’s commissions, and related sale costs directly from escrow; and
Waiving the 14-day stay prescribed by rule 6004(h) of the Federal Rules of Bankruptcy Procedure.
APPEARANCES REQUIRED.
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
11:00 AM
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
Adv#: 6:16-01295 Abbasi v. Surace et al
(HOLDING DATE)
From: 2/15/17, 5/17/17, 6/7/17, 10/25/17, 11/29/17, 3/21/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Defendant(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Walie Qadir Represented By
Batkhand Zoljargal
Marym Qadir Represented By
Batkhand Zoljargal
Plaintiff(s):
Setareh Abbasi Represented By
11:00 AM
Trustee(s):
Bruce Dannemeyer Bruce Dannemeyer
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
EH
Docket 234
- NONE LISTED -
Debtor(s):
Charles Frederick Biehl Represented By
Daryl L Binkley - DISBARRED - Steven L Bryson
Trustee(s):
John P Pringle (TR) Represented By James C Bastian Jr Elyza P Eshaghi Brandon J Iskander Lynda T Bui
Leonard M Shulman
2:00 PM
Adv#: 6:15-01370 Speier v. Test-Rite Products Corp. et al
§ 3439.04(a)(1) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (2) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(A) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (3) Fraudulent Transfer Pursuant to 11 U.S.C. § 544(b) and Cal. Civ. Code §§ 3439.04(a)(2), 3439.05 and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (4) Fraudulent Transfer Pursuant to 11 U.S.C. § 548(a)(1)(B) and Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; (5) Conversion; (6) Unlawful Payment of Dividends; (7) Breach of Fiduciary Duty by Officer; (8) Breach of Fiduciary Duty by Controlling Shareholder; and (9) Declaratory Relief as to Alter Ego Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 3/2/16, 4/6/16, 4/27/16, 6/29/16, 7/20/16, 8/3/16, 9/28/16, 11/9/16, 3/29/17, 8/2/17, 11/8/17, 1/10/18, 2/14/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Master Design Inc Represented By Eric M Sasahara John Y Kim
Defendant(s):
Test-Rite Products Corp. Represented By
2:00 PM
Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite International (U.S) Co. Represented By
Julie A Garcia John Y Kim Aaron S Craig
Test-Rite International Co. Ltd. Represented By Julie A Garcia Aaron S Craig Joon M Khang John Y Kim Brian Wheeler
Chester Lee Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Christina Ma Represented By
Julie A Garcia Joon M Khang Aaron S Craig Brian Wheeler
Test-Rite International (US) Co. Ltd. Represented By
Joon M Khang Julie A Garcia John Y Kim Aaron S Craig Brian Wheeler
Test-Rite Products Corp. Represented By Joon M Khang Julie A Garcia
2:00 PM
John Y Kim Aaron S Craig
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Marc C Forsythe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
2:00 PM
Adv#: 6:17-01129 Hadra et al v. Mendez et al
From: 9/13/17, 12/13/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Defendant(s):
William A. Mendez Represented By Thomas J Polis
Shawna D Mendez Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Plaintiff(s):
Andrew C. Hadra Represented By Peter W Lianides Alan Droste
2:00 PM
Vertical Partners LLC Represented By Peter W Lianides Alan Droste
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
2:00 PM
Adv#: 6:18-01038 Jones v. US Bank National Association et al
EH
Docket 5
- NONE LISTED -
Debtor(s):
Derick Jones Pro Se
Defendant(s):
US Bank National Association Pro Se
U.S. Bank National Association, on Represented By
Nichole Glowin
Movant(s):
U.S. Bank National Association, on Represented By
Nichole Glowin
Plaintiff(s):
Derick Jones Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01038 Jones v. US Bank National Association et al
Also #29 EH
Docket 1
- NONE LISTED -
Debtor(s):
Derick Jones Pro Se
Defendant(s):
US Bank National Association Pro Se
U.S. Bank National Association, on Represented By
Nichole Glowin
Plaintiff(s):
Derick Jones Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
12:30 PM
EH
Docket 166
On July 27, 2015, Michael Goodrich & Kimberly Carter ("Debtors") filed a Chapter 13 voluntary petition. On September 23, 2015, Quantum3 Group LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $7,569 ("Claim 12"). Claim 12 states that Creditor is acting as the agent of Comenity Capital Bank. On February 2, 2016, Debtors’ Chapter 13 plan was confirmed.
On March 12, 2018, Debtors filed an objection to Claim 12. Debtors argue that Claim 12 does not contain evidence establishing that Creditor can enforce collection of the claim.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy
12:30 PM
Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
FED. R. BANKR. P. Rule 3001(b) states: "A proof of claim shall be executed by the creditor or the creditor’s authorized agent except as provided in Rules 3004 and 3005." Debtors’ objection raises the issue of what an authorized agent is required to provide to establish that they meet the definition of an authorized agent.
The Court notes that in section 8 of the official proof of claim box, the filer has the
12:30 PM
option of checking a box identifying the filer as an authorized agent under penalty of perjury. Here, Creditor did check the appropriate box. Such an assertion, made under penalty of perjury, constitutes evidence that Creditor is, in fact, the authorized agent of the entity upon whose behalf the claim was filed, and is sufficient to satisfy FED. R. BANKR. P. Rule 3001(b). See, e.g., In re Healey, 2017 WL 4863014 at *3 (Bankr. E.D. Tex. 2017) ("an authorized agent need not demonstrate the existence of a power of attorney in order to file a proof of claim"); see also 9 COLLIER’S ON BANKRUPTCY ¶ 3001.06 (16th ed. 2015) ("The form [Official Form 410, Item 8] previously required an authorized agent to attach documentation demonstrating a power of attorney, but the 2012 amendments deleted that requirement.."); FED. R. BANKR. P. Rule 9010(c) ("The authority of any agent, attorney in fact, or proxy to represent a creditor for any purpose other than the execution and filing of a proof or claim or the acceptance or rejection of a plan shall be evidenced by a power of attorney conforming substantially to the appropriate Official Form.").
The Court is inclined to OVERRULE the objection.
APPERANCES REQUIRED.
Debtor(s):
Michael Brian Goodrich Sr. Represented By Christopher J Langley
Joint Debtor(s):
Kimberly JoAnn Carter Represented By Christopher J Langley
Movant(s):
Michael Brian Goodrich Sr. Represented By Christopher J Langley
12:30 PM
Trustee(s):
Christopher J Langley
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 133
On July 29, 2015, Crescencio & Maria Ramirez ("Debtors") filed a Chapter 13 voluntary petition. On August 19, 2015, Greater California Financial Services ("Creditor") filed a proof of claim for a claim in the amount of $11,247.45 secured by certain real property in San Bernardino County ("Claim 2"). Claim 2 is supported by a recorded abstract of judgment with recorder’s number 2011-0457234.
On April 14, 2016, Debtors filed a motion to avoid Creditor’s lien. On May 25, 2016, the Court denied the motion without prejudice for inadequate service and supporting evidence. On June 29, 2016, Debtors filed a second motion to avoid Creditor’s lien. The next day, the case was dismissed. On August 5, 2016, the dismissal order was vacated. On August 12, 2016, Debtors filed a third motion to avoid Creditor’s lien, which was granted on September 9, 2016, avoiding the lien with recorder’s number 2011-0457234.
12:30 PM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
12:30 PM
As noted in the background section, Creditor’s lien was avoided pursuant to Court order entered September 9, 2016 [Dkt. No. 93]. Therefore, Creditor’s claim is not secured and is to be treated as an unsecured claim for purposes of Debtor’s Chapter 13 plan.
The Court is inclined to SUSTAIN the objection.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Cresencio Ramirez Ramirez Represented By John F Brady
Joint Debtor(s):
Maria Olga Ramirez Represented By John F Brady
Movant(s):
Cresencio Ramirez Ramirez Represented By John F Brady
Maria Olga Ramirez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 27
On February 9, 2017, Gary & Mercedes Pico ("Debtors") filed a Chapter 13 voluntary petition. On March 1, 2017, Quantum3 Group LLC ("Creditor"), as agent for Credit Corp Solutions Inc., filed a proof of claim for an unsecured claim in the amount of
$3,562.69 ("Claim 3"). On April 10, 2017, Debtors’ Chapter 13 plan was confirmed.
On March 14, 2018, Debtors filed an objection to Claim 3. Due to a filing error, Debtors re-filed the objection five days later. Debtors argue that Claim 3 is insufficiently documented and that they are not liable for the debt underlying Claim 3.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy
12:30 PM
Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
FED. R. BANKR. P. Rule 3001(c) outlines the supporting information required to be included with a proof of claim. FED. R. BANKR. P. Rule 3001(c)(1) states:
Except for a claim governed by paragraph (3) of this subdivision, when a
12:30 PM
claim, or an interest in property of the debtor securing the claim, is based on a writing, a copy of the writing shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim.
FED. R. BANKR. P. Rule 3001(c)(3) provides that a copy of the writing need not be provided when the claim is based on an "open-end or revolving consumer credit agreement," so long as certain basic information is provided with the proof of claim. Here, Creditor has attached a statement of account information that appears to satisfy FED. R. BANKR. P. Rule 3001(c)(3). Nevertheless, it does not appear that Claim 3 is of the type to which that subsection applies. Specifically, the Court notes that Claim 3 identifies the basis of the claim as "money loaned" rather than a credit card or some sort of credit agreement. Therefore, it appears that Claim 3 is subject to FED. R. BANKR.
P. Rule 3001(c)(1). Because Claim 3 does not contain a copy of the writing upon which the claim is based, the Court is inclined to disallow the claim.
Furthermore, the Court notes that Creditor has not opposed the claim objection, which the Court deems consent to the relief requested pursuant to Local Rule 9013-(1)(h).
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
12:30 PM
Debtor(s):
Gary F Pico Represented By
Patricia M Ashcraft
Joint Debtor(s):
Mercedes P. Pico Represented By Patricia M Ashcraft
Movant(s):
Gary F Pico Represented By
Patricia M Ashcraft
Mercedes P. Pico Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
CASE DISMISSED 3/13/17
From: 11/30/17, 1/25/18 EH
Docket 30
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
12:30 PM
On October 20, 2017, the Court granted the Motion for OSC and ordered
Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
12:30 PM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 33
The Court having reviewed the motion, notice being proper and good cause appearing, the Court is inclined to GRANT the motion, AVOIDING the lien of Bank of America upon receipt of a Chapter 13 discharge.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Movant(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Alejandro J. Casillas Represented By Tina H Trinh
Joint Debtor(s):
Patricia Casillas Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Felipe Gonzalez Plasencia Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Gary Randall Wootton Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Avila Pro Se
Joint Debtor(s):
Graciela Salcedo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Derrick Leon Worthy Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Carmen Maria Sanchez Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Raymond J Osuna Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Michael Christopher Oropallo Represented By
Rabin J Pournazarian
Joint Debtor(s):
Lauren Elaine Oropallo Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Tomas Llamas-Guerra Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
William Thomas Pedrino Represented By Todd L Turoci
Joint Debtor(s):
Terri Lyn Pedrino Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Manuel Remigio Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Mickey Alligood Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Evan Todd Flynn Represented By Emilia N McAfee
Joint Debtor(s):
Elizabeth Flynn Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Lorraine McPike Represented By Zulu Ali
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 113
- NONE LISTED -
Debtor(s):
Jacob J Cannon Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Danielle M Cannon Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 69
- NONE LISTED -
Debtor(s):
John C Tapocik Represented By Stephen R Wade
W. Derek May
Joint Debtor(s):
Arisia D Tapocik Represented By Stephen R Wade
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 205
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 99
- NONE LISTED -
Debtor(s):
Michael Lee Barnes Represented By Todd L Turoci
Joint Debtor(s):
Belinda Ann Barnes Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 71
- NONE LISTED -
Debtor(s):
Bennea Cynthia Travis Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 58
- NONE LISTED -
Debtor(s):
Louis Rocco Antonio Antonucci Represented By
James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 96
- NONE LISTED -
Debtor(s):
ROBERT A HAGUE Represented By Manfred Schroer
Joint Debtor(s):
DIANNE L HAGUE Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 66
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 73
- NONE LISTED -
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 72
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 51
- NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 27
- NONE LISTED -
Debtor(s):
Gerardo Garibay Represented By Alberto Carranza
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 25
- NONE LISTED -
Debtor(s):
Sandra Lorena Parra Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
Adv#: 6:17-01046 Chapman v. U.S. Bank, NA et al
EH
Docket 0
Debtor(s):
Bernadette Chapman Represented By Todd L Turoci
Defendant(s):
U.S. Bank, NA Represented By
Sonia Plesset Edwards Gwen H Ribar
Wenjing Dai Represented By
Robert O Marshall
Plaintiff(s):
Bernadette Chapman Represented By Todd L Turoci Julie Philippi
9:30 AM
From: 12/14/17, 12/21/17, 3/5/18 EH
Docket 46
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Movant(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Julie Lynn Salazar Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:17-01213 Winegardner Masonry, Inc. v. Salazar
Holding Date
MAIN CASE DISMISSED 3/9/18
From: 12/21/18, 3/5/18 EH
Docket 1
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Defendant(s):
Julie Lynn Salazar Represented By
Joseph C Markowitz
Plaintiff(s):
Winegardner Masonry, Inc. Represented By William A Smelko
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BMO HARRIS BANK N.A.
From: 3/20/18 EH
Docket 9
Debtor(s):
Willie J Bryant Represented By Ronald L Brownson
Movant(s):
BMO Harris Bank N.A. Represented By Deborah S Cochran
Trustee(s):
Todd A. Frealy (TR) Pro Se
1:00 PM
MOVANT: RODOLFO AGUIAR AND IRMA D AGUIAR
From: 4/10/18, 4/19/18, 4/26/18 (Advanced) EH
Docket 12
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Movant(s):
Rodolfo Aguiar Represented By Alla Tenina
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
MOVANT: MARC BURNS
From: 4/10/18, 4/19/18, 4/26/18 (Advanced) EH
Docket 8
Debtor(s):
Marc Burns Represented By
D Justin Harelik
Movant(s):
Marc Burns Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
EH
Docket 79
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
12:30 PM
Anne Louise Goodman Pro Se
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Douglas Edward Goodman Represented By Edward T Weber
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Anne Louise Goodman Represented By Edward T Weber
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Adv#: 6:17-01213 Winegardner Masonry, Inc. v. Salazar
Holding Date
MAIN CASE DISMISSED 3/9/18
From: 12/21/18, 3/5/18 EH
Docket 1
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Defendant(s):
Julie Lynn Salazar Represented By
Joseph C Markowitz
Plaintiff(s):
Winegardner Masonry, Inc. Represented By William A Smelko
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
From: 7/6/17, 10/5/17, 10/26/17, 12/14/17, 12/21/17, 3/8/18
EH
Docket 0
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
From: 11/30/17, 12/21/17, 1/25/18, 3/1/18, 3/22/18
EH
Docket 0
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
Debtor(s):
Samuel Garcia Represented By
James Geoffrey Beirne
Joint Debtor(s):
Claudia Garcia Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 0
Debtor(s):
Scott Lawrence Represented By Kevin Tang
Joint Debtor(s):
Anita D Lawrence Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
EH
Docket 22
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark
Movant(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark Michael E Clark
Michelle Kiklang Bernardino Represented By Michael E Clark Michael E Clark Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #8 EH
Docket 0
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Juana Santiago Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Agustin Gonzalez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Andre Durham Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Jose Reyes Agredano Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Veronica Hernandez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Mario Maldonado Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Moises Martinez Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
MOVANT: RODOLFO AGUIAR AND IRMA D AGUIAR
From: 4/10/18 EH
Docket 12
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Movant(s):
Rodolfo Aguiar Represented By Alla Tenina
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
MOVANT: MARC BURNS
From: 4/10/18 EH
Docket 8
Debtor(s):
Marc Burns Represented By
D Justin Harelik
Movant(s):
Marc Burns Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
EH
Docket 71
Debtor(s):
Gustavo Brito Represented By Freddie V Vega
Movant(s):
California Department of Tax and Represented By
Suman Mathews
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 105
Debtor(s):
Jonathan William Nicastro Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 121
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 52
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 40
Debtor(s):
Jose A. Gonzales Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 35
Debtor(s):
Ryan Eddie Hinojosa Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 23
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
12:31 PM
Docket 33
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DITECH FINANCIAL LLC
EH
Docket 164
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Based on the Court's review of the evidence presented by the parties, it appears Debtor is still delinquent by approximately $480.
APPEARANCES REQUIRED.
Debtor(s):
Stacey Jo West Represented By Arnold H Wuhrman
Movant(s):
DITECH FINANCIAL LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
From: 3/20/18 EH
Docket 104
- NONE LISTED -
Debtor(s):
Oscar R Avila Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Alice M Avila Represented By Michael Smith Sundee M Teeple
Movant(s):
Deutsche Bank Trust Company Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18, 3/20/18 EH
Docket 69
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 41
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
On March 29, 2018, Debtor filed a Motion for Authority to Sell the Property. Debtor has indicated that he intends to pay off the Movant and remainder of the chapter 13 plan through escrow. The Trustee has recommended approval of the sale. The Court is inclined to CONTINUE the matter for 30 days for Debtor to finalize sale.
APPEARANCES REQUIRED.
Debtor(s):
Delkys Hyde Represented By
David L Nelson
Movant(s):
Bank of America, N.A. Represented By Bonni S Mantovani
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK TRUST N.A.
EH
Docket 319
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) based on a failure to make at least 7 monthly payments due and owing to Movant. GRANT waiver of 4001(a)(3) stay. GRANT leave to offer loan workout options. GRANT order defining debtor as borrower under state law.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days
Debtor(s):
Jack C Pryor Represented By
Trent Thompson
Movant(s):
US Bank Trust National Association Represented By
Kristin A Zilberstein
Trustee(s):
Karl T Anderson (TR) Represented By Leonard M Shulman
10:00 AM
Melissa Davis Lowe Brandon J Iskander
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
EH
Docket 55
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
Movant(s):
Deutsche Bank Trust Company Represented By
10:00 AM
Trustee(s):
April Harriott Seth Greenhill Sean C Ferry
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 59
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Absent agreement on an APO, the Court is inclined to GRANT relief from the stay under § 362(d)(1).
GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout.
GRANT the requested relief that upon entry of this order, for purposes of Cal. Civ. Code § 2923.5, the Debtor is a borrower as defined in Cal. Civ. Code § 2920.5(c)(2) (C).
APPEARANCES REQUIRED
Debtor(s):
Jose Alberto Lara-Pena Represented By Luis G Torres
Joint Debtor(s):
Yanisleidy Sanchez-Quinonez Represented By Luis G Torres
10:00 AM
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee DeMarcus Jones
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA N.A.
EH
Docket 30
- NONE LISTED -
Debtor(s):
Veronica A Mendoza Represented By Stephen S Smyth William J Smyth
Movant(s):
Bank of America, N.A. Represented By
Kristin A Zilberstein Kelly M Raftery
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 48
- NONE LISTED -
Debtor(s):
Lubna Shiraz Ahmed Represented By Joshua L Sternberg
Movant(s):
WELLS FARGO BANK, N.A. Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 3/20/18 EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BAYVIEW LOAN SERVICING, LLC
EH
Docket 34
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT Relief from the stay under § 362(d)(4). Court finds that bankruptcy case was part of a scheme to hinder, delay and defraud creditors based on unauthorized transfers affecting this property. GRANT relief requested under ¶10. DENIED as to ¶ 11 for lack of cause shown.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Silvia Alvarez Represented By
Filemon Kevin Samson III
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
U.S.C. § 362
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 23
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Parties to update Court regarding APO discussions. Absent agreement, the Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT termination of the co-debtor stay. GRANT waiver of 4001(a)(3) stay. GRANT authority to offer loan workout options.
APPEARANCES REQUIRED.
Debtor(s):
Noel Mallari Represented By
David L Nelson
Movant(s):
Freedom Mortgage Corporation Represented By John D Schlotter
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 3/20/18 EH
Docket 31
- NONE LISTED -
Debtor(s):
Gerald Curtis Collins Represented By
M Wayne Tucker
Joint Debtor(s):
Valerie Cecelia Collins Represented By
M Wayne Tucker
Movant(s):
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
U.S.C. § 362.
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
EH
Docket 28
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Movant(s):
DEUTSCHE BANK TRUST Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 46
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ernesto Sanchez Represented By Jerry Rulsky
Movant(s):
Freedom Mortgage Corporation Represented By Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 35
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Debtor is three payments behind. Absent APO agreement, Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT termination of the co-debtor stay. GRANT waiver of 4001(a)(3) stay. GRANT as to authority to offer loan workout options.
APPEARANCES REQUIRED.
Debtor(s):
Anthony J McPike Represented By Dana Travis
Movant(s):
The Bank of New York Mellon, et al Represented By
Bonni S Mantovani
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC dba MR COOPER
EH
Docket 41
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT leave to offer loan workout options. GRANT order defining debtor as borrower under state law. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
Joint Debtor(s):
Dora Maria Joya Represented By Daniel King
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEERE & COMPANY
EH
Docket 23
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Charlie W Parker Pro Se
Movant(s):
Donald T. Dunning T. DEERE & Represented By
Donald T Dunning
Trustee(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
10:00 AM
MOVANT: ALLY BANK
EH
Docket 12
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ryan James Masalcas Represented By Jenny L Doling
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: GATEWAY ONE LENDING & FINANCE
EH
Docket 14
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
John D. Verrell Represented By
James D. Hornbuckle
Joint Debtor(s):
Amber N. Verrell Represented By
James D. Hornbuckle
Movant(s):
Gateway One Lending & Finance Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA
EH
Docket 9
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days
Debtor(s):
Calvin Deshune Bass Represented By James P Doan
Movant(s):
HSBC Bank USA, National Represented By Nancy L Lee
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: CROSBY CAPITAL USA LLC
CASE DISMISSED 4/18/18
EH
Docket 13
Hearing Date: 4/24/18 Service: Ok Opposition: Yes
Standing
A party seeking relief from the stay "need only establish that it has a colorable claim to enforce a right against property of the estate." In re Pak, 2011 WL 7145763 (9th Cir.BAP (Cal.) 2011). A showing by a party that it is a person entitled to enforce the note at issue or that it holds some ownership or other interest in the note translates to a colorable claim. Id.
Here, Movant has provided a copy of the Note (Ex. 1), the original Deed of Trust (Ex. 2), and a series of recorded assignment deeds which sufficiently establish chain of title in the Movant (Ex. 3). Based on this evidence, the Court finds that Movant has made a colorable claim that it has the right to enforce its property rights against the subject Property. The Debtor’s standing arguments are overruled.
Scope of proceedings
A motion for stay relief is a summary proceeding. In re Santa Clara County Fair Ass'n, Inc., 180 B.R. 564 (9th Cir.BAP (Cal.) 1995) (citing In re Computer Communications, Inc., 824 F.2d 725, 729 (9th Cir.1987)). In a summary proceeding, the court's discretion is broad. Courts may consider the factor of judicial economy
10:00 AM
when deciding lift stay issues. Id.
The only triable issues in a Motion for Relief from Stay are (1) lack of adequate protection; (2) the debtor's equity in the property; and (3) the necessity of the property to an effective reorganization of the debtor, or (4) the existence of other cause for relief from the stay. In re Computer Communications, Inc., 824 F.2d 725, 729.
Here, the issues and defenses surrounding the validity of the underlying security and whether the Movant is empowered to pursue foreclosure actions under state law do not directly relate to the lifting of the stay, and accordingly they are not issues that are before the bankruptcy court. The irregularities raised by the Debtor are more properly considered by a state court in the determination of an unlawful detainer action.
Relief from Stay
The Movant has provided evidence that the Debtor’s instant bankruptcy filing is part of a scheme to hinder/delay enforcement of its rights. Specifically, Exhibit 7 to the Motion is a Grant Deed which indicates that the Debtor attempted, without authorization of her lender, to grant a partial interest in the Property to Willie Anderson on or about December 18, 2017. Movant has further provided evidence that Willie Anderson filed bankruptcy in January 2018 and had his case dismissed on February 20, 2018. Finally, the Court’s docket reflects that the Debtor’s own case has been dismissed as of April 18, 2018, for failure to file information. In her opposition the Debtor fails to address, controvert or provide any meritorious objection to the evidence filed by Movant.
Based on the foregoing, the Court is inclined to GRANT the Motion pursuant to §§ 362(d)(1) and (d)(4). GRANT as to ¶¶ 2, 3, and 6. Additionally, the Court waives the 14-day stay. The request as to ¶10 is GRANTED with the modification that the order must be recorded in compliance with applicable nonbankruptcy law.
APPEARANCES REQUIRED.
Debtor(s):
Ardreda Lynn Johnson Pro Se
10:00 AM
Movant(s):
Crosby Capital USA LLC Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: COLTON MOBILE HOME COMMUNITY LLC
EH
Docket 12
Hearing Date: 4/24/18 Service: Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES REQUIRED.
Debtor(s):
Allan Gabriel Reyes Represented By Benjamin R Heston
Movant(s):
Colton Mobile Home Community, Represented By
Barry L O'Connor
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: JAELYN YOUNG
EH
Docket 14
04/24/2018
Service appears proper and no opposition has been filed. The Debtor has provided sufficient evidence that her new employment with Flagship Facility Services, Inc. is likely to provide sufficient disposable income with which to propose a feasible plan. The Debtor has overcome the presumption that the case was filed in bad faith.
APPEARANCES REQUIRED.
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
HOLDING DATE
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17, 1/30/18, 4/10/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17, 1/30/18, 4/10/18
Also #28 - #30
EH
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 10/24/17, 10/31/17, 11/28/17, 12/19/17, 1/30/18, 4/10/18 Also #27 - #30
EH
Docket 303
10/31/2017
The hearing on the Motion is continued to November 28, 2017, at 2:00 p.m. as a holding date.
APPEARANCES WAIVED.
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18
Also #27 - #30
EH
Docket 83
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 12/19/17 Also #27 - #29
EH
Docket 306
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Fredman Lieberman Pearl LLP Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 2/6/18, 2/13/18, 3/6/18, 3/20/18 Also #32 & #33
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
EH
Docket 200
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
Also #31 & #32 EH
Docket 173
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
United States Trustee (RS) Represented By Everett L Green
2:00 PM
MOVANT: SIEMENS FINANCIAL SERVICES, INC.
Also #35 & #36 EH
Docket 243
04/24/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Siemens Financial Services, Inc. Represented By
Jeannie Kim
2:00 PM
MOVANT: CELTIC BANK CORPORATION
Also #34 & #36 EH
Docket 246
04/24/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO DENIED as moot.
GRANTED as to ¶¶ 8 and 9. DENIED as to ¶¶7 and 10 for lack of cause shown.
As to the additional relief requested by Movant, the Court GRANTS Movant authority to enforce its State law remedies including as provided for in the Master Lease Agreement at ¶ 16, pgs. 7-8 (Exhibit A to Zern Declaration) and the Pledge Agreement at ¶ 7 and Cash Collateral Pledge and Security Agreement at Section 6.
See Exhibits 1 and 2 to Zern Decl.; and to allow relief from stay for immediate application by Movant of the security deposit to outstanding arrears described in Attachment A.
Parties to discuss terms of turnover.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Celtic Bank Corporation Represented By
Kathryn M.S. Catherwood
2:00 PM
Also #34 & #35 EH
Docket 198
On December 1, 2017, Auto Strap Transport, LLC ("Debtor") filed its petition for chapter 11 relief. Among the assets of the Debtor’s estate is certain leased equipment described as a 2016 Peterbilt 389 Tractor, Vin Number 1NPXL49X7GD301762 and the 2016 CX-11 Cottrell Trailer, Vin Number VIN5E0AJ144XGG737101 (the "Equipment"). The Equipment is was leased to the Debtor by CIT Finance LLC ("CIT") pursuant to an Equipment Finance Agreement (the "Agreement").
On March 8, 2018, CIT filed its Motion To Compel Assumption Or Rejection Of Defaulted Contract Regarding Personal Property ("Motion"). The Motion seeks (1) an Order requiring the Debtor to assume or reject the Agreement by April 10, 2018;
an Order requiring that Debtor provide adequate protection of Movant’s interest in the Equipment, including, but not limited to maintenance of appropriate insurance coverage on the Equipment as required by the Agreement, (3) an order requiring that Debtor maintain payments to Movant under 11 U.S.C § 365(d)(5) until said Agreement is assumed or rejected; and (4) an Order terminating the automatic stay in the event the Agreement is rejected. If no responsive pleading is filed, the Movant requests that the Agreement be deemed rejected and that the automatic stay be vacated as to the Equipment.
2:00 PM
Service was proper and no opposition has been filed.
In a case under chapter 11, a debtor in possession may assume an unexpired lease of personal property at any time prior to confirmation of a plan. Zions Credit Corp. v. Rebel Rents, Inc., Perris Valley Rentals, Inc.(In re Rebel Rents, Inc., Perris Valley Rentals, Inc.), 291 B.R. 520, 529 (Bankr. C.D. Cal. 2003) (citing 11 U.S.C. § 365(a) & (d)(2)). It is the policy of the Bankruptcy Code to provide the debtor with breathing space following the filing of the petition, continuing until the confirmation of a plan, in which to assume or reject an unexpired lease. See In re Enron Corp., 279
B.R. 695, 702 (Bankr.S.D.N.Y.2002). However, the court, on request of a party to a lease, may order the debtor in possession to determine within a specified period of time whether to assume or reject. 11 U.S.C. § 365(d)(2).
Here, the Debtor, though properly served with the Motion, has failed to file opposition or response. Additionally, CIT has provided evidence that Debtor is in default on payments due and owing to CIT under the terms of the Agreement (specifically "for the monthly rental payments coming due on December 1, 2017, respectively … The aggregate monthly Lease payment, inclusive of taxes is
$5,868.16."). (Lleras Decl. ¶4). Based on the evidence that the Debtor is not abiding by the terms of the Agreement and based also on the Debtor’s failure to file any response to the Motion, the Court finds that an order compelling immediate rejection of the Agreement is warranted.
Based on the foregoing, the Court is inclined to GRANT the Motion deeming the Agreement rejected as of the hearing date of April 24, 2018, based on the Debtor’s failure to file opposition or response. Additionally, CIT’s Motion sets forth sufficient cause for lifting of the automatic stay. The remaining requests for relief are DENIED
2:00 PM
as moot. CIT may pursue its state law remedies to seek turnover of the Equipment.
APPEARANCES REQUIRED.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
CIT Group, Inc. Represented By
Brian C Vanderhoof
2:00 PM
Also #38 EH
Docket 49
On January 26, 2018 ("Petition Date"), Markus Anthony Boyd ("Debtor") filed for chapter 11 relief. On March 19, 2018, Debtor filed Objection to Claims # 2 and 5 (the "Objection") of American Express FSB. Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
2:00 PM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Debtor objects to Claims No. 2 and 5 on the basis that the applicable state statute of limitations for collection of the debts in question has lapsed. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Debtor has provided evidence that Claim No. 2 was charged off in May 2008 and that the last transaction recorded by Claimant was in November 2007. Debtor has provided evidence that Claim No. 5 was charged off in August 2008 and that the last transaction recorded by Claimant was in December 2007. The Debtor has established that over four years have lapsed since the last item in the account. Thus, the burden to show the validity of Claims No. 2 and 5 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
2:00 PM
For the foregoing reasons, the Objection is SUSTAINED as to Claims No. 2 and 5.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Also #37 EH
Docket 50
On January 26, 2018 ("Petition Date"), Markus Anthony Boyd ("Debtor") filed for chapter 11 relief. On March 19, 2018, Debtor filed Objection to Claims # 4 and 6 (the "Objection") of American Express Centurion Bank. Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
2:00 PM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Debtor objects to Claims No. 4 and 6 on the basis that the applicable state statute of limitations for collection of the debts in question has lapsed. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Debtor has provided evidence that Claim No. 4’s last transaction date was in October 2007. Debtor has provided evidence that Claim No. 5’s last payment date was in December 2007. The Debtor’s analysis of the potential time tolled by the Debtor’s intervening bankruptcy cases appears correct and thus Debtor has established that over four years have lapsed since the last item in the accounts. Thus, the burden to show the validity of Claims No. 4 and 6 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
2:00 PM
For the foregoing reasons, the Objection is SUSTAINED as to Claims No. 4 and 6.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/6/18 EH
Docket 7
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
(2) Requiring Status Report Also #41
EH
Docket 0
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
2:00 PM
FINAL HEARING
From: 3/12/18 Also #40
EH
Docket 5
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
11:00 AM
EH
Docket 98
On April 28, 2015, Home Security Stores, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On May 28, 2015, the Court authorized the employment of Goe & Forsythe, LLP as general counsel to Trustee. On July 2, 2015, the Court authorized the employment of Hahn Fife & Co. LLP as accountants for Trustee. On July 17, 2015, the Court authorized the employment of Credit Management Association as auctioneer for Trustee.
On April 20, 2016, the Court extended the deadline for Trustee to file avoidance actions by six months, to October 28, 2017. On April 28, 2017, the Trustee filed an avoidance action. On October 30, 2017, the Court extended the deadline for Trustee to file avoidance actions by an additional six months. On April 4, 2018, Trustee filed a third motion to extend the deadline to file avoidance actions, requesting an additional six months. On April 11, 2018, Ralph & Stacy Winn (the "Winns"), shareholders of Debtor, filed a limited opposition to Trustee’s request. The Winns do not oppose an extension of the deadline to file avoidance actions, rather they appear to generally dispute the Trustee’s characterization of their role in the proceedings.
11:00 AM
Trustee continues to maintain that Debtor and various associated individuals have been uncooperative with requests for information. The Court notes that on January 26, 2017, a 2004 examination was ordered of Harry Histen ("Histen"), a prior attorney for Debtor. Furthermore, on April 20, 2017, the Court granted Trustee’s motion to compel Histen’s turnover of recorded information. Trustee asserts that as part of Histen’s production of electronic files, Trustee learned that, in April 2015, We Got’cha Covered made copies of Debtor’s hard drive and recovered deleted files.
Trustee asserts that "[n]otwithstanding multiuple [sic] demands to Debtor and its principals for such documents, these records were never produced." Trustee argues that he needs this information to assess whether any additional avoidance actions are appropriate.
11 U.S.C. § 546 requires that an avoidance action be brought within two years of the entry of the order for relief. That deadline, however, can be extended. See, e.g., In re United Ins. Mgmt., Inc., 14 F.3d 1380, 1384 (9th Cir. 1994). The current deadline in this case is April 30, 2018, which Trustee seeks to extend for six months to and including October 30, 2018.
FED. R. BANKR. P. Rule 9006(b) states:
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
11:00 AM
The Court adopts a "for cause" standard when determining whether to utilized FED. R. BANKR. P. Rule 9006(b) to extend a deadline. See In re Fundamental Long Term Care, Inc., 501 B.R. 784, 789 (Bankr. M.D. Fla. 2013). In this case, Trustee’s motion indicates that Histen, We Got’cha Covered, and Debtor have not been fully cooperative with, and possibly obstructive of, Trustee’s attempt to investigate Debtor’s financial affairs. Trustee indicates that he does not yet have the information necessary to assess whether further avoidance actions are necessary, and it appears that such delay is through no fault of Trustee.
Moreover, the Court deems lack of opposition as consent to the relief requested pursuant to Local Rule 9013-(1)(h).
For the foregoing reasons, the Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Movant(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Miller
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe
11:00 AM
Charity J Miller
2:00 PM
Adv#: 6:13-01111 Vega v. Barrios
Also #3 EH
Docket 46
- NONE LISTED -
Debtor(s):
Carmen Elisabeth Barrios Represented By David H Chung
Defendant(s):
Carmen Elisabeth Barrios Represented By
Andrew Edward Smyth
Plaintiff(s):
Crystal Vega Represented By
Mirna El Hazin
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:13-01111 Vega v. Barrios
EH
Docket 54
- NONE LISTED -
Debtor(s):
Carmen Elisabeth Barrios Represented By David H Chung
Defendant(s):
Carmen Elisabeth Barrios Represented By
Andrew Edward Smyth
Movant(s):
Crystal Vega Represented By
Mirna El Hazin
Plaintiff(s):
Crystal Vega Represented By
Mirna El Hazin
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
From: 8/31/16, 11/2/16, 1/11/17, 3/8/17, 6/7/17, 8/2/17, 8/23/17, 11/8/17, 1/31/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar
2:00 PM
Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
D Edward Hays
2:00 PM
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:18-01026 United States Trustee for the Central District of v. Lambert et al
From: 3/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Defendant(s):
Timothy Wayne Lambert Pro Se
Lisa Renee Lambert Pro Se
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
Plaintiff(s):
United States Trustee for the Central Represented By
Everett L Green
2:00 PM
Trustee(s):
John P Pringle (TR) Pro Se
2:00 PM
Adv#: 6:18-01040 Cisneros v. Harter et al
U.S.C. §§ 363 and 542] - Nature of Suit: 91 - Declaratory judgment, 11 Recovery of money/property - 542 turnover of property, 31 - Approval of sale of property of estate and of a co-owner - 363(h)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
Defendant(s):
Joseph Harter Represented By Todd L Turoci
Connie Flach Pro Se
John Rose Represented By
Dina Farhat
Tammy Rose Represented By
Dina Farhat
Brennan Rose Represented By Dina Farhat
KayLynne Rose Represented By
2:00 PM
Dina Farhat
Plaintiff(s):
A. Cisneros Represented By
Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:18-01038 Jones v. US Bank National Association et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Derick Jones Pro Se
Defendant(s):
US Bank National Association Pro Se
U.S. Bank National Association, on Represented By
Nichole Glowin
U.S. Bank National Association, on Represented By
Nichole Glowin
Plaintiff(s):
Derick Jones Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
W.E. Jon Albrecht against Nabeel Slaieh. willful and malicious injury))
HOLDING DATE
From: 10/19/16, 12/14/16, 2/15/17, 3/29/17, 6/7/17, 10/25/17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Nabeel Slaieh Represented By George A Saba
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice George A Saba
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood
2:00 PM
Matthew Grimshaw
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
EH
Docket 49
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
Also #10 - #13
EH
Docket 33
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
EH
Docket 42
On April 12, 2016, Jose Hernandez ("Debtor") filed a Chapter 7 voluntary petition. On July 7, 2016, the Chapter 7 Trustee ("Plaintiff") filed a complaint against Carolina Navarro ("Defendant") seeking the avoidance and recovery of a fraudulent transfer.
After default was entered against Defendant, on October 14, 2016, the parties stipulated to set aside default, and, that same day, Defendant filed her answer. On March 1, 2018, Plaintiff filed a motion for summary judgment. On April 4, 2018, Defendant filed her opposition.
Plaintiff alleges that on July 21, 2014, Debtor transferred certain real property located at 3510 Duffy St., San Bernardino, CA 92407 to Defendant for no consideration and that Debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer. Defendant received a Chapter 7 discharge on January 26, 2018.
2:00 PM
Violation of Discharge Injunction
As a preliminary matter, Defendant argues that because she obtained her own discharge in January, the continuation of this proceeding violates her discharge injunction. Specifically, Defendant argues that her discharge extinguishes her personal liability and that Trustee’s complaint seeks avoidance of the transfer and recovery of the property or its value. Defendant’s opposition states:
Notwithstanding his heightened knowledge of the provisions of the Bankruptcy Code and bankruptcy jurisprudence, the Trustee has pursued the same claims and remedies against Defendant after her discharge was granted, relieving her of any personal liability on account of the Trustee’s alleged claims and barring the Trustee from obtaining relief in this case. For example, the Trustee seeks judgment on his Fifth Claim, which as pled in the Complaint, alleges that "Plaintiff is entitled to recovery the Subject Property or its value from the Defendant Pursuant to § 550(a)."
[Dkt. No. 46, pg. 12-13].
Defendant’s argument is misleading and lacks merit. Regardless of the relief requested in the complaint, which was filed before Defendant obtained a discharge, Plaintiff’s motion for summary judgment has dropped the reference to "or its value" and only seeks recovery of the subject property. Nothing in the motion for summary judgment seeks to enforce a personal liability of the Defendant. Therefore, the Court rejects Defendant’s argument.
Motion for Summary Judgment
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. Rule 56(c) (incorporated by FED. R. BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of
2:00 PM
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324; see also FED. R. CIV. P. Rule 56(e). The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff requests summary judgment on the second claim for relief (avoidance of constructively fraudulent transfer) and the fifth claim for relief (recovery of avoided transfer). 11 U.S.C. § 548(a)(1)(B) states, in pertinent part:
(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily --
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation
Defendant does not dispute that there was a transfer of an interest of property within 2
2:00 PM
years before the petition date. Defendant does, however, dispute the satisfaction of the other two elements, arguing that Defendant received reasonably equivalent value and was not rendered insolvent by the subject transfer. See generally In re Fruehauf Trailer Corp., 444 F.3d 203, 210 (3rd Cir. 2006); In re Southern Textile Knitters, 65 Fed. Appx. 426, 436 (4th Cir. 2003) (outlining elements of § 548(a)(1)(B) action).
Regarding the requirement that reasonably equivalent value have been provided, Plaintiff asserts that the grant deed reflects that the transfer was a "bonafide gift and the grantor received nothing in return." In her opposition, Defendant argues that the language of the grant deed is inaccurate, and that she offered value in a variety of ways. Specifically, Defendant contends that she was a co-signer for the refinancing and "also provided consideration by contributing her wages to pay for household expenses and by providing domestic labor including cooking, cleaning, child-rearing, and running the parties’ household." [Dkt. No. 46, pg. 17, lines 7-9]. With regard to the language on the grant deed, Defendant states that:
The Grant Deed was not prepared by Debtor or Defendant. Debtor and Defendant correctly advised the loan officer who handled the refinancing that Defendant was not paying cash to Debtor for her one-half interest. For this reason, Debtor and Defendant believe the loan officer or escrow agent who prepared the Grant Deed noted on the document that the Transfer was a gift.
[Dkt. No. 46, pg. 5, lines 1-5].
In the reply, Plaintiff contends that "[a]fter first stating that it was a gift and nothing was received, the Debtor and Defendant should be estopped from now claiming it was not a gift and reasonably equivalent value was provided for the Subject Transfer." [Dkt. No. 51, pg. 4, lines 13-15].
The Court concludes that the parol evidence rule applies here to preclude the consideration of evidence which contradicts the plain and unambiguous language of the deed. See generally In re Khalil, 2014 WL 1725811 at *6-11 (Bankr. C.D. Cal. 2014) (collecting cases providing comprehensive analysis of the parol evidence rule in the context of grant deeds deed). As was noted in Khalil:
If there is no ambiguity on the face of the document, and no reference to information or terms in the recorded document or from the circumstances of the conveyance that would lead a bona fide purchaser to inquire as to the intent and meaning of the instrument, then the bona fide purchaser is entitled to rely on the written record and is not charged with or bound by unstated meanings
2:00 PM
or by secret or collateral agreements that add to or alter the written record.
Id. at *10. While the above quotation is in the context of ownership interests in real property, rather than the nature of consideration, or lack thereof, in connection with a grant deed, the same underlying principle is applicable: "third parties, including the trustee and the estate’s creditors, must be able to rely on the terms of recorded deed." Id. at *11. See also id. at *10 ("As a general rule, when any ambiguity is not evident from the face of the instrument (i.e., a "latent" ambiguity), the deed must be construed solely from an analysis of the plain meaning of the document itself, and extrinsic evidence is not admissible."); Laux v. Freed, 53 Cal. 2d. 512, 523 (Cal. 1960) ("[I]f the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms.").
Regarding the insolvency requirement, Plaintiff first argues that given the absence of reasonably equivalent value, Debtor’s insolvency as a result of the transfer should be assumed; Plaintiff cites United States v. Mazzeo, 245 B.R. 435, 441 (E.D.N.Y. 1999). The Court declines to make such a presumption. The case cited by Plaintiff, and the related case law, deals with fraudulent transfer provisions under New York state law. See, e.g., Kim v. Ji Sung Yoo, 2017 WL 4382078 (S.D.N.Y. 2017) (noting presumption and collecting cases). No such burden shifting framework, however, exists under the Bankruptcy Code. See 5 COLLIER’S ON BANKRUPTCY ¶ 548.11[2] (16th ed. 2017) ("Under state law and the UFTA (and presumably the UVTA), a well- recognized exception permits the court to infer a proscribed financial state once the plaintiff has shown a lack of fair consideration or a lack of reasonably equivalent value. This shift should not apply to cases brought under section 548.") (footnotes omitted); see also In re Galbreath, 286 B.R. 185, 197 (Bankr. S.D. Ga. 2002) ("The burden for proving constructive fraud falls on the trustee who must show by a preponderance of the evidence that all requirements set out in § 548(a)(1)(B) have been met.")
Plaintiff next argues that Debtor’s insolvency can be established through a review of the schedules. Essentially, Plaintiff argues that the schedules indicate that Debtor was insolvent as of the petition date, and that the Court can work backwards to conclude that Debtor was insolvent on the date of the transfer. As one bankruptcy court has stated:
Since insolvency at a given point in time is often difficult to demonstrate by direct proof, courts permit the trustee to show that the debtor was insolvent at one point in time and then prove that the same condition existed at the time of
2:00 PM
the subject transfer. This method of proof has been labeled "retrojection," but
it applies equally to situations in which the trustee starts at a point in time prior to the transfer. When the trustee chooses to use this method of proof it is essential that the trustee be able to show the absence of any substantial or radical changes in the assets or liabilities of the bankruptcy between the retrojection dates.
In re R. Purbeck & Assocs., Ltd., 27 B.R. 953, 955 (Bankr. D. Conn. 1983) (footnotes and quotation omitted). Plaintiff argues that the schedules reflect that Debtor had no meaningful unexempt assets as of the petition date while much of Debtor’s unsecured debt was identified as having been incurred prior to the date of the transfer.
Furthermore, Debtor’s statement of financial affairs does not disclose any significant transfers of property between the date of the subject transfer and the petition date.
In Defendant’s opposition, she appears to contend that Debtor’s outstanding debt on the date of the subject transfer was $210,282 and that Debtor’s assets were valued at approximately $224,000. The Court notes that these assertions do not demonstrate solvency – they demonstrate insolvency as that term is defined in the Code. 11 U.S.C.
§ 101(32)(A)(ii) exempts from the solvency requirement property which may be exempt under § 522. The assets listed in Debtor’s schedules, and in Defendant’s opposition, all appear to be assets capable of being exempted under § 522, thereby rendering Defendant statutorily insolvent. Even ignoring that fact, however, Defendant’s opposition indicates that Debtor had $53,186 in equity in the property; transferring a 50% interest in the property would have rendered Debtor insolvent even before removing property which can be exempted. As a result, the Court concludes that Plaintiff has demonstrated there is no genuine dispute regarding Debtor’s insolvency on the date of the subject transfer.
Recovery
Plaintiff also seeks recovery of the subject property pursuant to 11 U.S.C. § 550. 11
U.S.C. § 550(a)(1) states:
Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from –
the initial transferee of such transfer or the entity for whose benefit such transfer was made
2:00 PM
Defendant opposes the requested recovery, although the legal basis for the opposition is less than clear. Defendant argues that "annulment of the Transfer would have the effect of returning the Property to a single ownership since Debtor was the sole owner. Therefore, recovery of the Transfer is unnecessary and provides no benefit to the estate." [Dkt. No. 46, pg. 18, lines 15-17]. The Court’s interpretation of the Plaintiff’s request is that Plaintiff is requesting an order indicating that the Property has retained to single ownership (the bankruptcy estate). Therefore, it does not appear there is really any legal dispute here, semantical differences aside.
Withdrawal of Admissions
In light of the foregoing, the Court is inclined to deny Defendant’s motion to withdraw admissions as moot. The Court need not rely on admissions by default in resolving the instant motion for summary judgment.
The Court is inclined to GRANT the motion for summary judgment, avoiding the transfer as constructively fraudulent and permitting Trustee’s recovery of such transfer. Defendant’s motion to withdrawn admissions is DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
2:00 PM
Movant(s):
Larry D Simons Represented By Frank X Ruggier
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 9/7/16, 11/9/16, 1/11/17, 3/8/17, 4/12/17, 5/17/17, 6/7/17, 7/26/17, 9/27/17, 11/29/17, 1/10/18
Also #10 - #12
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
11:00 AM
Adv#: 6:16-01277 Reynoso v. Goodman et al
From: 4/19/18 EH
Docket 79
04/26/2018
BACKGROUND
On September 12, 2016, Douglas and Anne Goodman (collectively, "Debtors" or "Defendants") filed their petition for chapter 13 relief.
On November 11, 2016, Mark and Natasha Reynoso (collectively, "Plaintiffs") filed a complaint seeking determination of the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) (the "Complaint"). Specifically, Plaintiffs allege that in 2015, they purchased real property located at 1656 West Lisbon Street in Upland, CA (the "Property") from the Debtors, and that a sale was consummated on the misrepresentations of the Debtors’ agent, Theresa Mann, that the Property was 3,231 square feet while Plaintiffs assert that the Property is actually 2,713 square feet (or a difference of 518 square feet). Plaintiffs also assert that they were led to believe that a water leak in the upstairs bathroom had been repaired. Plaintiffs allege that the Debtors knew or should have known that their agent was making false and misleading representations to Plaintiffs.
On February 3, 2017, the Court entered an order granting Defendants first motion to dismiss the Complaint, with leave to amend. An First Amended Complaint (the "FAC") was filed on April 19, 2017. The Court denied Defendants’ second motion to dismiss at a hearing on , May 4, 2017. On June 5, 2017, the Defendants filed their Answer to the FAC ("Answer").
11:00 AM
On March 9, 2018, the Defendants moved to dismiss the FAC ("Motion"). The hearing was initially set for April 19, 2018, but was continued to April 26, 2018, on the Court’s own motion, by order entered April 11, 2018. The deadline for opposition based on the initially scheduled hearing was April 5, 2018. At the time that the Court continued the hearing, Plaintiffs had not filed any opposition to the Motion and their deadline to oppose had lapsed. Subsequent to the Court continuing the hearing, the Plaintiffs late-filed their opposition on April 12, 2018 ("Opposition"), for the April 19, 2018, hearing. On April 20, 2018, the Defendants filed a reply primarily objecting to the timeliness of the Opposition ("Reply").
DISCUSSION
As a threshold matter, the Motion seeks relief pursuant to Rule 12(b)(6).
However, given that the Defendants have filed an Answer to the FAC, the Court shall construe the Motion as a motion under Rule 12(c), a motion for judgment on the pleadings.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Knappenberger v. City of Phx., 566 F.3d 936, 939 (9th Cir.2009) (quoting Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995)).
On a Rule 12(c) motion, the court must accept as true all the material facts alleged in the complaint and must draw all reasonable inferences in favor of the non- moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). In ruling on a Rule 12(c) motion, the court may not consider extrinsic evidence unless the motion is converted into a Rule 56 summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989) (citing Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982)). However, a court may consider facts that are contained in materials of which the court may take judicial notice when considering a motion for judgment on the pleadings. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir.1999) (quoting Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994)).
11:00 AM
The crux of Defendants’ argument for dismissal of the FAC is that Plaintiffs
have not set forth the basis for a money judgment under state law. Specifically, the Motion provides, in pertinent part, that
Plaintiffs have requested a money judgment in their amended complaint, they do not appear to have provided any legal basis for their request—i.e. there is no state law basis to enter a money judgment. 11
U.S.C. §523(a)(2) is not a basis to enter a money judgment; the plain language of the statute provides that it is a basis for finding a debt to be nondischargeable. If the Plaintiffs want a money judgment, they need to provide a non-bankruptcy law basis for their request. They have not done so here.
Motion at ¶6.
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469 B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014).
Here, although the Complaint is not explicit regarding the state law causes of action at issue, it appears implicit in the allegations that the Plaintiffs seek a monetary judgment as to a fraud or misrepresentation claim. Nonetheless, Plaintiffs should not have to guess at the state law basis of the debt for a money judgment.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the Motion dismissing the FAC with leave to amend, in order to provide the Plaintiffs with an opportunity to set forth the specific bases for monetary damages under state law such that the litigation can proceed.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Pro Se
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Douglas Edward Goodman Represented By Edward T Weber
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Anne Louise Goodman Represented By
11:00 AM
Edward T Weber
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01213 Winegardner Masonry, Inc. v. Salazar
Holding Date
MAIN CASE DISMISSED 3/9/18
From: 12/21/18, 3/5/18, 4/19/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Defendant(s):
Julie Lynn Salazar Represented By
Joseph C Markowitz
Plaintiff(s):
Winegardner Masonry, Inc. Represented By William A Smelko
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
EH
Docket 3
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Movant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Kristin) Also #3 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 3/9/18
EH
Docket 62
- NONE LISTED -
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Movant(s):
Julie Lynn Salazar Represented By Jenny L Doling Summer M Shaw
Julie Lynn Salazar Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Ibay Orina Represented By
Timothy L McCandless
Joint Debtor(s):
Emmyruth Amizola Orina Represented By
Timothy L McCandless
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 27
04/26/2018
The Claim at issue was withdrawn on April 12, 2018. The Court is inclined to OVERRULE the Objection as moot.
APPEARANCES WAIVED.
Debtor(s):
Thomas Milton Bell Represented By Ronald W Ask
Joint Debtor(s):
Guadalupe Bell Represented By Ronald W Ask
Movant(s):
Thomas Milton Bell Represented By Ronald W Ask
Guadalupe Bell Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/30/17, 12/21/17, 1/25/18, 3/1/18, 3/22/18, 4/19/18
EH
Docket 0
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 EH
Docket 29
- NONE LISTED -
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #9 EH
Docket 35
- NONE LISTED -
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Movant(s):
Jose R. Castaneda Represented By Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple Craig K Streed Craig K Streed
Miriam L Castaneda Represented By
11:00 AM
Trustee(s):
Michael Smith Sundee M Teeple Craig K Streed
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Samuel Garcia Represented By
James Geoffrey Beirne
Joint Debtor(s):
Claudia Garcia Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Scott Lawrence Represented By Kevin Tang
Joint Debtor(s):
Anita D Lawrence Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
William Thomas Pedrino Represented By Todd L Turoci
Joint Debtor(s):
Terri Lyn Pedrino Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Evan Todd Flynn Represented By Emilia N McAfee
Joint Debtor(s):
Elizabeth Flynn Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #17 EH
Docket 22
04/26/2018
BACKGROUND
On February 5, 2018 ("Petition Date"), Geth-Rang Jr. Takawo and Michelle Kiklang Bernardino (collectively, the "Debtors") filed for chapter 13 relief. Among the assets of the Debtors’ estate is a 2013 Jeep Wrangler (the "Jeep") which is subject to the security interest of Santander Consumer USA Inc. ("Santander"). On February 21, 2018, Santander filed Proof of Claim No. 2 asserting a secured claim in the amount of $25,575 with an unsecured claim for $5,854.50, for a total claim of
$31,429.50.
On March 15, 2018, the Debtors filed their Motion for Setting Property Value (the "Motion"). The Motion was properly served and no opposition or response has been filed.
DISCUSSION
Section 506(a) ‘operates to bifurcate [an under] secured creditor's allowed claim into secured and unsecured interests based upon the bankruptcy court's
11:00 AM
valuation of the secured property. 11 U.S.C. § 506; In re 1441 Veteran Street Co., 144 F.3d 1288, 1291 (9th Cir.1998); Shook v. CBIC (In re Shook), 278 B.R. 815, 822 (9th
Cir. BAP 2002).
Here, the Debtors have provided evidence asserting, based on the NADA Guide estimate of value, that the Jeep has a current fair market value of $19,425. Based on the Debtor’s valuation, Santander’s secured claim should be reduced to
$19,425 with an unsecured claim in the amount of $12,004.50.
TENTATIVE RULING
Based on the foregoing, including Santander’s failure to file opposition or response, which the Court deems as consent to the granting of the Motion, the Court is inclined to GRANT the Motion valuing the Jeep at $19,425 and bifurcating the claims of Santander as set forth above.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark
Movant(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark Michael E Clark
Michelle Kiklang Bernardino Represented By
11:00 AM
Trustee(s):
Michael E Clark Michael E Clark Michael E Clark
Rod Danielson (TR) Pro Se
11:00 AM
Also #16 EH
Docket 0
- NONE LISTED -
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Juana Santiago Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Reyes Agredano Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Veronica Hernandez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Moises Martinez Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edgardo Aranda Represented By Paul Y Lee
Joint Debtor(s):
Kelley Aranda Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Stephen Daniel Payan Represented By Paul J Kurtzhall
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jaqueline Lee Stephens Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ruben Munoz Tovar Represented By Sunita N Sood
Joint Debtor(s):
Sandra Isabel Garcia Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David E Fisher Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David L Knapp Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ernesto J Prodigalidad Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Albertina Do Carmo Silva Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Ortiz Landazuri Represented By
Dennis A Rasmussen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gilbert D Olivares Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Yanina Galvan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kimberly Lezette Mizera Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #37 EH
Docket 0
- NONE LISTED -
Debtor(s):
Diana J Everett Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DIANA J. EVERETT
From: 3/6/18, 3/12/18 Also #36
EH
Docket 8
03/06/2018
The Debtor indicates that the case was dismissed for two reasons: (1) the Debtor’s disability income decreased, and (2) the Debtor’s daughter was in a serious accident in November 2017 and the Debtor has been paying her medical and legal fees associated with the accident.
The Debtor’s explanation for the dismissal of the prior case is sufficiently detailed. However, the Motion does not address whether there has been a change in the financial or personal affairs of the Debtor since January 2018 (when the case was dismissed) such that the Debtor is likely to be able to complete her plan going forward. In particular, there is no indication that the medical emergency which resulted in dismissal of the Debtor’s prior case has ended. Additionally, the Debtor now indicates that she is supporting her unemployed domestic partner. The Debtor’s disposable income has decreased from $4,197.72 in her prior case to $704.72 in the current case.
Separately, the Court notes that the Notice of Motion did not specify the identities of the Debtor’s secured creditors as required by the Court’s form motion. As such, notice
11:00 AM
for the secured creditors is improper.
For these reasons, the Court is inclined to DENY the Motion. APPEARANCES REQUIRED.
Debtor(s):
Diana J Everett Represented By Paul Y Lee
Movant(s):
Diana J Everett Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Danilo DeLaCruz Jr. Represented By Paul Y Lee
Joint Debtor(s):
Maria Russiel DeLaCruz Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert VanSurksum Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Confirmation of Chapter 13 Plan
EH
Debtor(s):
Mardie Lois Washington Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeffrey R Powell Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norma Hermosillo Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Louis Baumann Represented By
M Wayne Tucker
Joint Debtor(s):
Tracey Leigh Baumann Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Dony M Portillo Represented By Paul Y Lee
Joint Debtor(s):
Raquel A Portillo Represented By Paul Y Lee Andrea Liddick
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Karen Ann Staff Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rushelyn Napalan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Armando Guzman Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 17
Summary of the Motion:
TENTATIVE
The electronically filed Motion contains a proof of service ("POS") with blank dates and no service information. The POS is insufficient to establish proper service as filed. Based on the foregoing, the Court is inclined to CONTINUE the hearing to May 24, 2018, at 11:00 a.m. for Movant to file and serve notice of the continued hearing pursuant to FRBP 7004.
On correcting the service issue as indicated, the Court is inclined to GRANT the Motion.
APPEARANCES WAIVED.
Debtor(s):
Michael A Losoya Represented By
11:00 AM
Julie J Villalobos
Joint Debtor(s):
Patricia O Losoya Represented By Julie J Villalobos
Movant(s):
Michael A Losoya Represented By Julie J Villalobos
Patricia O Losoya Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: RODOLFO AGUIAR AND IRMA D AGUIAR
From: 4/10/18, 4/19/18 EH
Docket 12
The Court is inclined to DENY the motion for improper service. The Court notes that the motion purports to be set on regular notice, but this motion is actually being heard on shortened notice. As a result, the motion leaves notified parties with minimal time to file an objection. Furthermore, secured creditors were not served pursuant to FED. R. BANKR. P. Rule 7004 as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By
11:00 AM
Movant(s):
Alla Tenina
Rodolfo Aguiar Represented By Alla Tenina
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MARC BURNS
From: 4/10/18, 4/19/18 EH
Docket 8
The Court is inclined to DENY the motion. The Court notes that secured creditors were not served pursuant to FED. R. BANKR. P. Rule 7004 as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Marc Burns Represented By
D Justin Harelik
Movant(s):
Marc Burns Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Robb Lee Armstrong Represented By Steven A Alpert
Joint Debtor(s):
Silvia Armstrong Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 159
- NONE LISTED -
Debtor(s):
Francisco Javier Medina Represented By Tamar Terzian
Joint Debtor(s):
Maria Guadalupe Medina Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 157
- NONE LISTED -
Debtor(s):
Richard Joseph Adams Sr. Represented By Steven A Alpert
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Deborah Lynn Gordon Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 71
The hearing on the Motion was continued for proper service on the Debtor. A Notice of Continued Hearing correcting the prior service error was filed on March 26, 2018, and the Debtor has failed to file any opposition or response which the Court deems as consent to the granting of the Motion under LBR 9013-1(h). Based on the prior tentative ruling, the Court is inclined to GRANT the Motion and dismiss the case for non-payment of post-petition tax liabilities.
APPEARANCES WAIVED. Movant to lodge an order attaching both of this Court's tentative rulings as an exhibit.
11:01 AM
On September 30, 2014, Gustavo Brito ("Debtor") filed a Chapter 13 voluntary petition. On November 20, 2014, Debtor’s Chapter 13 plan was confirmed. The mandatory Chapter 13 form plan contains a provision (Section V.H) which states: "The Debtor will pay timely all postconfirmation tax liabilities directly to the appropriate taxing authorities as they become due."
Since confirmation the Trustee has filed three motions to dismiss, all of which were ultimately resolved. Additionally, the Chapter 13 plan has been modified once. On February 23, 2018, the California Department of Tax & Fee Administration ("CDTFA") filed a motion to dismiss or convert to Chapter 7 on the basis that Debtors had not paid their postconfirmation taxes. The Court notes that the motion was served on Debtors’ attorney, but was not served on Debtors.
The Court will continue the matter for CDTFA to serve the motion on Debtors.
Regarding the merits, the Court notes that 11 U.S.C. § 1307(c)(6) provides for dismissal or conversion for cause, which is defined to include "material default by the debtor with respect to a term of a confirmed plan." Here, the Court notes that Debtors’ confirmed plan provided that all postconfirmation tax liabilities were to be timely paid. CDTFA has provided evidence that Debtor has accrued $19,888.54 in post- petition tax liabilities which constitutes a material default satisfying § 1307(c)(6).
Because Debtors do not appear to have meaningful unencumbered, unexempt assets, this Court would be inclined to dismiss the case rather than convert it to Chapter 7.
The Court is inclined to CONTINUE the matter to April 19, 2018 at 12:30 p.m. for
11:01 AM
proper service of the motion on Debtors.
APPEARANCES REQUIRED.
Debtor(s):
Gustavo Brito Represented By Freddie V Vega
Movant(s):
California Department of Tax and Represented By
Suman Mathews
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 71
- NONE LISTED -
Debtor(s):
Bennea Cynthia Travis Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Brenda Morgan Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 105
- NONE LISTED -
Debtor(s):
Jonathan William Nicastro Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Patricia Daniels Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 121
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- NONE LISTED -
Debtor(s):
Joseph John Vargas Represented By Dana Travis
Joint Debtor(s):
Lydia Vargas Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 52
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 73
- NONE LISTED -
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Jose A. Gonzales Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 21
- NONE LISTED -
Debtor(s):
Robert Nelson Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Stacy N Reagor Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Anthony J McPike Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Ryan Eddie Hinojosa Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Evonne Marie Woodard Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 16
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 49
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Andrea Sindy Pozgaj Represented By Joel M Feinstein
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 41
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Cecilia Orozco Represented By Majid Safaie
Joint Debtor(s):
Sergio Orozco Represented By Majid Safaie
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 55
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Richard M. Orellano II Represented By Patricia M Ashcraft
Joint Debtor(s):
Tifany Orellano Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 48
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
John E Neilsen Sr Represented By Julie J Villalobos
Joint Debtor(s):
Kathy A Neilsen Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BMO HARRIS BANK N.A.
From: 3/20/18, 4/17/18 EH
Docket 9
APPEARANCES REQUIRED.
Debtor(s):
Willie J Bryant Represented By Ronald L Brownson
Movant(s):
BMO Harris Bank N.A. Represented By Deborah S Cochran
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (d)(2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Victor Cervantes Jr. Represented By Christopher Hewitt
Trustee(s):
John P Pringle (TR) Pro Se
2:00 PM
EH
Docket 46
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 11 voluntary petition. On February 27, 2018, the Court authorized Debtor’s employment of Goe & Forsythe, LLP as general bankruptcy counsel as well as the employment of a real estate broker. On March 27, 2018, the Court authorized the employment of Christopher Abernathy as special counsel. On April 16, 2018, the Court authorized Debtor’s employment of a CPA.
On April 5, 2018, Joana Johnson ("Joana") filed a "motion to determine character of Granowitz funds as separate property of the non-debtor spouse under pre-petition state court order." Through the motion, Joana requests that the Court issue an order characterizing the Granowitz funds as her separate property (and not property of the bankruptcy estate) and require that the funds be turned over from Debtor’s client trust fund to Joana’s client trust fund. On April 17, 2018, Debtor filed his opposition.
2:00 PM
FED. R. BANKR. P. Rule 7001 states, in pertinent part:
An adversary proceeding is governed by the rules of this Part VII. The following are adversary proceedings:
a proceeding to recover money or property, other than a proceeding to compel the debtor to deliver property to the trustee, or a proceeding under § 554(b) or
§ 725 of the Code, Rule 2017, or Rule 6002;
a proceeding to determine the validity, priority, or extent of a lien or other interest in property, but not a proceeding under Rule 3012 or Rule 4003(d); . . .
(9) a proceeding to obtain a declaratory judgment relating to any of the foregoing
Debtor argues that Joana’s request for a determination that the Granowitz funds are her separate property fits within the scope of Rule 7001(2). Debtor further argues that Joana’s request that the funds be turned over fits within the scope of Rule 7001(1).
The Court agrees with Debtor. While the requirement of an adversary proceeding may be waivable in certain circumstances, here Debtor has opposed the requested relief and raised the procedural defect. See, e.g., In re Fadel, 492 B.R. 1, 10 n.5 (B.A.P. 9th Cir. 2013) (resolving a dispute regarding property interests in alleged community property, but noting that neither party had raised the requirement of an adversary proceeding imposed by Rule 7001(2)). Plainly, Joana’s motion requests that the Court determine, or issue a declaratory "judgment" regarding, the extent of the parties’ respective interest in the property at issue, the Granowitz funds. Therefore, the request requires an adversary proceeding pursuant to FED. R. BANKR. P. Rule 7001.
Joana’s reply asserts two separate grounds for why an adversary proceeding is not required here. First, Joana argues that Debtor has previously waived the requirement of an adversary proceeding. In so asserting, Joana states that "the Pre-Petition State
2:00 PM
Court Stipulation provides that the Granowitz Funds ‘shall be held or refunded pending further bankruptcy court approval.’ [Doc. p. 2, lns. 10-12)." This argument is unclear. The document referenced was not filed pre-petition (it was executed February 22, 2018) and the document provides for Granowitz (Joana’s counsel) to transfer the funds to the client trust account for Debtor’s counsel. This simply does not constitute a waiver of the right to an adversary proceeding if Joana seeks a subsequent re- transfer of the funds, and therefore the Court rejects this argument as lacking merit.
Joana also essentially argues that the requirement of an adversary proceeding can essentially be disregarded when ignoring such a requirement would be harmless; Joana cites a Bankruptcy Appellate Panel case in support of her assertion. In re Munoz, however, is identifying an appellate standard, i.e. failure to proceed by means of adversary proceeding does not require reversal if such failure is harmless error. 287
B.R. 546, 551 (B.A.P. 9th Cir. 2002). The case also states that "[i]t is error to circumvent the requirement of an adversary proceeding by using a ‘contested matter’ motion under Federal Rule of Bankruptcy Procedure 9014." Id. The Court rejects Joana’s request, which essentially amounts to a request to use a deferential appellate standard of review at the trial court level.
The Court need not reach Joana’s request for turnover of the Granowitz funds, because such request is dependent on obtaining an order characterizing the funds as Joana’s separate property.
The Court is inclined to DENY the motion without prejudice to filing an adversary proceeding.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
11:00 AM
Docket 322
05/02/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 13,520.36 |
Trustee Expenses: | $ 793.07 |
Attorney Fees: | $36,610.21 |
Attorney Costs: | $5,047.77 |
Accountant Fees: | $1,737.91 |
Accountant Costs: | $310 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Jack C Pryor Represented By
11:00 AM
Trustee(s):
Trent Thompson
Karl T Anderson (TR) Represented By Leonard M Shulman Melissa Davis Lowe Brandon J Iskander
11:00 AM
Docket 70
05/02/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 2,350 |
Trustee Expenses: | $ 48.84 |
Attorney Fees: | $10,000 |
Attorney Costs: | $0 |
Accountant Fees: | $1,000 (per flat fee order entered 12/14/17) |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Armon Randolph Sharp Represented By Daniel King
Raymond W Stockstill
Trustee(s):
Arturo Cisneros (TR) Represented By Toan B Chung
2:00 PM
EH
Docket 74
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
2:00 PM
Adv#: 6:18-01038 Jones v. US Bank National Association et al
EH
Docket 13
On November 22, 2017, Derick Jones ("Debtor") filed his first bankruptcy petition (the "First Case"). The First Case was dismissed on January 5, 2018, for failure to file information. On January 12, 2018, the Debtor filed his second bankruptcy petition (the "Second Case"). The chapter 7 trustee is Karl Anderson ("Trustee"). Among the assets of the Debtor’s estate is an alleged tenancy interest in certain real property located at 3187 Pinehurst Drive in Corona, CA (the "Property").
On February 12, 2018, the Debtor filed his Complaint for Violation of the Automatic Stay ("Complaint") against U.S. Bank, NA (the "Bank"). In response, the Bank filed a motion to dismiss the Complaint on March 13, 2018. On March 28, 2018, the Debtor filed a First Amended Complaint alleging (1) violation of the automatic stay, (2) lack of standing for Bank to foreclose, and (3) unjust enrichment (the "FAC"). On April 5, 2018, the Bank filed its Motion to Dismiss the FAC (the "Motion"). Service of the Motion was proper and no opposition was filed.
On April 24, 2018, the Debtor filed a Notice of Non-Receipt of Motion to Dismiss the FAC ("Notice").
2:00 PM
DISCUSSION
Under Civil Rule 12(b)(6), made applicable in adversary proceedings through Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a Civil Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). However, the trial court need not accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under Civil Rule 12(b)(6), a plaintiff must aver in the complaint "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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under Civil Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson
v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
The court may rely on judicially noticed facts to establish that an adversary complaint does not state a claim for relief. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n. 9 (9th Cir.2012). And, it may consider the existence and content of documents referenced in the complaint when authenticity is uncontested and the plaintiff necessarily relied upon such documents in his complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003); Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.2001).
Request for Judicial Notice
As a threshold matter, the Court takes judicial notice of the documents filed in support of the Motion as Docket No. 14.
Service
Debtor filed his Notice asserting that he did not receive a copy of the Motion. The Debtor’s Notice, however, is not signed under penalty of perjury. In contrast, the Bank has filed a proof of service signed under penalty of perjury which indicates that the Debtor was properly served on the Debtor at his address of record. Based on the Bank’s proof of service, the Court concludes that service was proper and Debtor filed
2:00 PM
to file any opposition or response to the Motion.
Violation of the Automatic Stay
On October 27, 2017, the Superior Court in the UD Action entered Judgment in favor of the Bank and against the Debtor ("Judgment"). (FAC, pg. 2, ln. 6-7, and ¶ 9). On February 7, 2018, during the pendency of the Debtor’s Second Case, the Riverside County Sheriff effectuated a lock-out of the Debtor.
The Bank argues that the lock-out was not a violation of the automatic stay because under California law, the Debtor no longer had any equitable or legal interest in the Property. For this reason, Bank argues that the first claim for relief must be dismissed. The Bank argues, in pertinent part, that
California law contains very specific provisions that address whether an individual holds any legal or equitable interest in a property that was sold via a non-judicial foreclosure. Under California law, once a non- judicial foreclosure sale has occurred, the individual debtor’s rights in the foreclosed property are terminated. In re Onouli-Kona Land Co., (9th Cir. 1988) 846 F.2d. 1170. Specifically, the Courts have held that the completion of a foreclosure sale is effective upon the fall of auctioneer’s hammer. Ballengee v. Sadlier (1986) 179 Cal.App.3d 1; See also Cal. Civ. Code § 2924 (h) which provides that once the bidding is open, each bid constitutes "an irrevocable offer." Acceptance of the bid signals "the completion of the sale," constitutes the final adjudication of the rights of the borrower/debtor (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 440-441), and precludes the borrower/debtor from exercising any redemption or ownership rights in the foreclosed property (Ballengee v. Sadlier (1986) 179 Cal.App.3d 1, at p. 5; Jones v. Wagner (2001) 90 Cal.App.4th 466).
Motion at 7.
In support of its arguments, the Bank has provided a copy of the Trustee’s
2:00 PM
Deed Upon Sale which was recorded subsequent to the foreclosure on December 5, 2016. (RJN, Ex. 8). The Bank has also provided copies of the UD Minute Order awarding possession of the subject property and the Writ of Possession specifically entered in favor of Bank and against the Debtor, both were issued prior to the filing of the First Case. (RJN, Ex.’s 10 and 11).
In In re Perl, the Ninth Circuit determined 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. Eden Place, LLC v. Sholem Perl (In re Perl), 811 F.3d 1120, 1128 (9th Cir.), cert. denied sub nom. Perl v. Eden Place, LLC, 137 S. Ct. 39, 196 L. Ed. 2d 27 (2016). Here, Judgment and a Writ of Possession were entered in favor of Bank prepetition. Thus, any legal or equitable rights that Debtor may have possessed were effectively extinguished prior to the filing of the First Case and as such, the FAC fails to allege facts to support a claim for violation of the automatic stay because the Debtor retained no interest in the Property to be protected by automatic stay. Thus, the First Claim for Relief must be dismissed. Relatedly, the Debtor’s claims regarding standing and unjust enrichment constitute a collateral attack on the Unlawful Detainer Judgment of the State Court. This Court finds that permitting the Debtor’s litigation to continue would constitute a violation of the Rooker–Feldman doctrine. The Rooker- Feldman doctrine is confined to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1521–22 (2005). In this case, the Debtor is plainly dissatisfied with the Judgment of the State Court and now seeks to have this Court invalidate its Judgment.
TENTATIVE RULING
Based on the foregoing analysis, in addition to the Debtor’s failure to file opposition to the Motion which this Court deems as consent to the granting of the Motion, and based also on the arguments of Bank, which are well-taken, the Court is inclined to GRANT the Motion and DISMISS the FAC in its entirety, with prejudice.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Derick Jones Pro Se
Defendant(s):
US Bank National Association Pro Se
U.S. Bank National Association, on Represented By
Nichole Glowin
U.S. Bank National Association, on Represented By
Nichole Glowin
Movant(s):
U.S. Bank National Association, on Represented By
Nichole Glowin
Plaintiff(s):
Derick Jones Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01038 Jones v. US Bank National Association et al
Nature of Suit: (14 (Recovery of money/property - other)) From: 4/25/18
Also #4 EH
Docket 1
- NONE LISTED -
Debtor(s):
Derick Jones Pro Se
Defendant(s):
US Bank National Association Pro Se
U.S. Bank National Association, on Represented By
Nichole Glowin
U.S. Bank National Association, on Represented By
Nichole Glowin
Plaintiff(s):
Derick Jones Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: DITECH FINANCIAL LLC
From: 4/24/18 EH
Docket 164
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Based on the Court's review of the evidence presented by the parties, it appears Debtor is still delinquent by approximately $480.
APPEARANCES REQUIRED.
Debtor(s):
Stacey Jo West Represented By Arnold H Wuhrman
Movant(s):
DITECH FINANCIAL LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINTON SAVINGS FUND SOCIETY FSB dba CHRISTIANA TRUST
EH
Docket 58
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under
¶¶ 3 and 12 of the prayer for relief.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Joseph Lane Hilliard Represented By Ronald W Ask
Joint Debtor(s):
Christine Vivian Hilliard Represented By Ronald W Ask
Movant(s):
Wilmington Savings Fund Society, Represented By
Tyneia Merritt
10:00 AM
Trustee(s):
Nancy L Lee
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 61
NONE LISTED -
Debtor(s):
Juan M Madueno Carrizoza Represented By
James Geoffrey Beirne
Movant(s):
Nationstar Mortgage LLC Represented By Megan E Lees Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. NATIONAL ASSOCIATION
EH
Docket 38
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Timothy A Kiley Represented By
M Wayne Tucker
Joint Debtor(s):
Ellen Eastwood Represented By
M Wayne Tucker
Movant(s):
U.S. Bank National Association, as Represented By
Megan E Lees Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18, 3/6/18, 4/10/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 2/13/18, 3/6/18, 4/10/18 EH
Docket 23
02/13/2018
Service: Proper Opposition: Yes
Subject to discussions re adequate protection, the Court’s tentative is to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay, GRANT authority to offer loan workout options pursuant to ¶3 of prayer for relief and GRANT relief from the co-debtor stay.
APPEARANCES REQUIRED.
Debtor(s):
Warren Alan Hall Represented By Lionel E Giron
Joint Debtor(s):
Kelly Suzanne Hall Represented By
10:00 AM
Movant(s):
Lionel E Giron
U.S. Bank National Association, as Represented By
Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 53
05/08/2018
Service: Proper Opposition: Yes
Parties to update Court regarding status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
WELLS FARGO BANK, N.A. Represented By Jonetta A Graves Darshana Shah Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 22
05/08/2017
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Dolphe Stuart Clark Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Linda Joyce Clark Represented By
Ethan Kiwhan Chin
Movant(s):
U.S. Bank National Association, not Represented By
Erin M McCartney
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: VENTURA COUNTY CREDIT UNION
EH
Docket 21
05/08/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request under § 362(d)(2) for lack of evidence to support such finding.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Tony Lopez Sr Represented By Edgar P Lombera
Joint Debtor(s):
Nelida Aguilar Represented By Edgar P Lombera
Movant(s):
Ventura County Credit Union Represented By Ann G. Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PACIFIC UNION FINANCIAL LLC
EH
Docket 38
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 3, 6 and 12.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Movant(s):
Pacific Union Financial, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SETERUS INC
EH
Docket 24
05/08/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1), (d)(2) and (d)(4). Court finds that bankruptcy case was part of a scheme to hinder, delay and defraud creditors based on multiple bankruptcy filings and unauthorized transfers affecting this property.
GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3 and GRANTED as to annulment retroactive to the petition date.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Carlos V Sosa Ramirez Represented By Qais Zafari
Joint Debtor(s):
Xochitl O Sosa Represented By
10:00 AM
Movant(s):
Qais Zafari
Seterus, Inc. as the authorized Represented By James F Lewin
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: PNC BANK, NATIONAL ASSOCIATION
EH
Docket 33
05/08/2018
Service: Proper Opposition: Yes
Debtor asserts he has made the necessary payments through the chapter 13 trustee’s office. The order confirming chapter 13 plan explicitly provides for conduit payments and the Debtor has provided evidence that a cashier’s check was made out to the chapter 13 trustee on April 16, 2018. Based on the Debtor’s evidence, the Court is inclined to DENY the Motion.
However, the Court notes that the Case Number indicated on the Cashier’s Check indicates Case No. 18-10357-WJ, where that number should end in "MH."
APPEARANCES REQUIRED.
Debtor(s):
Isaias Solano Represented By
Edward T Weber
Movant(s):
PNC Bank, National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 14
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 3 and 12 of the prayer for relief.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jose Luis Rodriguez Pro Se
Movant(s):
The Bank of New York Mellon, as Represented By
Nancy L Lee
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
(2) Requiring Status Report EH
Docket 18
NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
10:00 AM
Also #2 EH
Docket 9
NONE LISTED -
Debtor(s):
Hyon C. Kwon Represented By Stephen S Smyth
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
Also #1 EH
Docket 12
NONE LISTED -
Debtor(s):
Hyon C. Kwon Represented By Stephen S Smyth
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
William Lanfranca Pro Se
Joint Debtor(s):
Karen Jean Lanfranca Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
$30,859.18
EH
Docket 10
NONE LISTED -
Debtor(s):
Kyle Montoya Represented By Terrence Fantauzzi
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 35
5/9/2018
The Court is inclined to DENY the motion without prejudice for insufficient evidence. Debtors’ motion refers to two senior liens: a voluntary lien held by Chase, and a judgment lien held by Citibank. Regarding the former, Debtors have provided a copy of a mortgage statement from August 2017 (more than six years after the petition date) showing an amount owing of $222,318.21. Regarding the latter, Debtors’ declaration references an exhibit (exhibit 7) which does not appear to have been included in the motion. Therefore, Debtors have not provided any evidence demonstrating the amount owing, as of the petition date, for either lien. As a result, it is not clear whether, as of the petition date, the second judgment lien of Citibank impaired an exemption of Debtors.
APPEARANCES REQUIRED.
Debtor(s):
Jason Lopez Represented By
Gary Swanson Terrence Fantauzzi
11:00 AM
Joint Debtor(s):
Julie Lopez Represented By
Gary Swanson Terrence Fantauzzi
Movant(s):
Jason Lopez Represented By
Gary Swanson Terrence Fantauzzi
Julie Lopez Represented By
Gary Swanson Terrence Fantauzzi
Trustee(s):
Christopher R Barclay (TR) Pro Se
11:00 AM
Docket 101
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 2,271 Trustee Expenses: $ 481.65
Attorney Fees: $ 9,883.43 Attorney Costs: $ 856.11
Accountant Fees: $2,673 Accountant Costs: $309.40
Auctioneer Fees: $4,450.84 Accountant Costs: $300
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
11:00 AM
Debtor(s):
Extreme Exhibits Inc Represented By Ronald L Brownson
Trustee(s):
Todd A. Frealy (TR) Represented By Toan B Chung
11:00 AM
Docket 25
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 509.50 Trustee Expenses: $ 26.33
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Abel Ortega Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Del R. Avalos De Ortega Represented By
James Geoffrey Beirne
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 23
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,250 Trustee Expenses: $ 44.40
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Barbara J Ritter Represented By Christina M Holt
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 14
NONE LISTED -
Debtor(s):
Paola Michelle Hartman Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
From: 8/30/17, 9/20/17, 11/1/17, 12/13/17, 2/7/18, 2/28/18, 3/28/18
EH
Docket 148
NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
EH
Docket 68
On November 30, 2015, Janice Cox ("Debtor") filed a Chapter 7 voluntary petition. On Schedule A, Debtor listed certain secondary real property located at1059 Hugo Ln., Big Bear City, CA 92314 (the "Property"). On March 11, 2016, the Court approved Trustee’s application to employ Malcolm Cisneros as general counsel. On March 21, 2016, the Court approved Trustee’s application to employ Steven Speier as real estate broker.1 On February 15, 2018, the Court approved Trustee’s application to employ Sarah Polley ("Broker") as real estate agent. On February 21, 2018, the Court entered an order directing Debtor to turn over the Property.
On April 18, 2018, Trustee filed a motion for an order: (1) authorizing Trustee to sell the Property pursuant to 11 U.S.C. § 363(b), free and clear of liens pursuant to 11
U.S.C. § 363(f); (2) approving overbid procedures; (3) approving compensation of Trustee’s broker; (4) authorizing distribution of sale proceeds; (5) determining that the proposed buyers are "good faith purchasers" under 11 U.S.C. § 363(m); and (6) waiving the 14 day state imposed by FED. R. BANKR. P. Rule 6004(h). The proposed sale price is $234,000. Trustee proposes to pay $50,866.40 for delinquent property taxes, $19,783 for Debtor’s exemption, $14,040 for Broker’s commission, and $4,680 for other costs of sale. The remaining $145,630.60 will accrue to the bankruptcy estate.
11:00 AM
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary course, after notice and a hearing. A sale pursuant to § 363(b) requires a demonstration that the sale has a valid business justification. In re 240 North Brand Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
While it appears that Broker only marketed the property for six weeks, Broker’s declaration has detailed significant efforts to market the property and the bid currently under review is close to the original listing price. Given the marketing of the property, the fact that the sale appears to be a good faith, arms-length transaction, and the fact that the estate would receive $145,630.60 for distribution to unsecured creditors, the Court concludes that Trustee has articulated an adequate business reason for the sale.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) (2010) states:
11:00 AM
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 a legal or equitable proceeding, to accept a money satisfaction of such interest.
Trustee contends that § 363(f)(3) is applicable. First, Trustee contends that aggregate value of all encumbrances on the property is $69,649.40, which is exceeded by the purchase price of $234,000.
Because Trustee has established that § 363(f)(3) is applicable, and in the absence of any objection, Trustee has met its burden in securing a sale free and clear of liens.
14-Day Stay
FED. R. BANKR. P. Rule 6004(h) states: "An order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." The Court deems the absence of objections to be consent to the relief requested, pursuant to Local Rule 9013-(1)(h), and, therefore, will waive the stay of Rule 6004(h).
11:00 AM
Miscellaneous Provisions
The Court has reviewed the remainder of Trustee’s miscellaneous requests. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has reviewed the requested Broker compensation of 6% of the sale price (totaling $14,040) and finds such compensation to be reasonable. The Court has reviewed Trustee’s proposed distribution of sale proceeds, and the Court finds that such distribution is reasonable and proper. Finally, the Court finds it appropriate to waive the Rule 6004(h) stay.
Finally, the Court has reviewed the declarations of the purchasers, Oscar and Ana Garcia (the "Garcias"), and finds the declarations sufficient for a determination that the Garcias are good faith purchasers pursuant to 11 U.S.C. § 363 (m).
The Court is inclined to GRANT the motion in its entirety. Specifically, the Court is inclined ot authorize the sale of the Property free and clear of liens, approve the overbid procedures, approve the Broker’s compensation, authorize the distribution of sale proceeds, determine that the Garcias are good faith purchasers and waived the 14- day stay under Rule 6004(h).
APPEARANCES REQUIRED.
Debtor(s):
Janice Elaine Cox Represented By Rajiv Jain
11:00 AM
Movant(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
Trustee(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
11:00 AM
Also #13 - #15
EH
Docket 588
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Douglas J Roger, MD Represented By Summer M Shaw
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
(HOLDING DATE)
Also #12 - #15
EH
Docket 578
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
(HOLDING DATE)
From: 2/14/18, 3/28/18 Also #12 - #15
EH
Docket 521
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Also #12 - #14
EH
Docket 542
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 3/7/18 Also #17
EH
Docket 68
PROCEDURAL BACKGROUND
On February 26, 2016, Sam & Greeta Dason (Sam, individually, "Dason") (collectively, "Debtors") filed a Chapter 7 voluntary petition. On August 22, 2016, Juddy Olivares & Eric Panitz (individually, "Olivares" and "Panitz") (collectively, "Plaintiffs") filed a complaint against Dason to determine dischargeability of debt (11
U.S.C. § 523(a)(6)) and for attorney’s fees. On September 20, 2016, the complaint was amended. On January 11, 2017, the Court dismissed Panitz from the complaint. On March 7, 2017, Olivares filed her second amended complaint.
On August 9, 2017, Dason filed an answer and a counter-claim1 against Olivares. On October 2, 2017, Olivares filed her answer to the counter-claim. On January 19, 2018, Olivares filed the instant motion for summary judgment. On February 13, 2018, Dason filed his opposition to the motion for summary judgment. On February 21, 2018, Olivares filed her reply.
The Court notes that Dason has conceded that his counter-claim is moot in light of this Court’s order annulling the automatic stay. As a result of this concession, it is the Court’s intention to dismiss the counter-claim in the absence of any objection from
2:00 PM
Dason.
FACTUAL BACKGROUND
Olivares began working as a dental assistant in 2010 for Colton Dental Group, the business name of Dason’s dental corporation, Sam Daniel Dason, DDS ("Dason DDS"). Olivares states that she "was subjected to offensive sexual comments and inquiries, and other unwelcome, sexually-based, offensive conduct by Defendant." Furthermore, Olivares states that she "was subjected to repeated unwelcome sexual touching at the hands of Defendant," which is extensively detailed in the complaint and the motion for summary judgment. On January 17, 2013, Olivares left early and did not return to work. On February 26, 2016, the San Bernardino County Superior Court entered a judgment against Dason and Dason DDS in the amount of
$1,724,996.34 (the "Judgment").2 The judgment contained the following components:
$300,000 for past emotional distress – hostile work environment
$200,000 for past emotional distress – quid pro quo sexual harassment
$500,000 for future emotional distress
$100,000 for punitive damages3
$1,875 for future psychiatric care
$8,125 for future psychological care
$6,735.22 for past lost income
$608,261.12 for attorney’s fees and costs
Olivares contends that the judgment is non-dischargeable pursuant to 11 U.S.C.
§ 523(a)(6). Olivares bases her motion for summary judgment both on issue preclusion and the record in this case. Dason argues that the record in this case cannot support summary judgment and that the state court judgment does not contain adequate findings to support issue preclusion.
Olivares requests that the Court apply issue preclusion and find that the Judgment is non-dischargeable under 11 U.S.C. § 523(a)(6). The Bankruptcy Code excepts from discharge any debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). The creditor bears the burden of proving each element of § 523(a)(6) by a preponderance of the evidence.
2:00 PM
See, e.g., Grogan v. Garner, 498 U.S. 279, 287 (1991).
To prevail on a claim under § 523(a)(6), a creditor must demonstrate three elements:
willful conduct; (2) malice; and (3) causation. See In re Butcher, 200 B.R. 675, 680 (Bankr. C.D. Cal. 1996) (quoting In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995)). A willful injury is a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). "A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008) (quoting In re Jercich, 238 F.3d 1202, 1209 (9th Cir. 2001)).
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c) (incorporated by FED. R. BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff’s State Court Claim
2:00 PM
The legal provision under which the relevant portion of the Judgment was based is
CAL. GOV. CODE § 12940(j)(1), which states:
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
Olivares reference EEOC guidelines which create two categories of sexual harassment: (1) quid pro quo and (2) hostile environment. Olivares also points to case law which acknowledges the two categories. See, e.g., Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 516-517 (Cal. Ct. App. 1998) ("There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. The second, and the one at issue in this case, is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.") (citations and quotations omitted).
2:00 PM
The delineation of two separate categories of sexual harassment is relevant and important here. First, the Court notes that the Judgement references Olivares’s claim for "Hostile Work Environment and Quid Pro Quo Sexual Harssament," and the state court specifically identified separate damages for "past emotional distress hostile work environment" and "past emotional distress quid pro quo sexual harassment." [Dkt. No. 70 at pg. 8, lines 1-2]. Because these two categories of sexual harassment implicate different issues and require different findings to be made, issue preclusion may operate differently with respect to each issue.
Issue Preclusion on Plaintiff’s Claim under 11 U.S.C. § 523(a)(6)
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001).
Additionally, the application of issue preclusion requires a "mandatory ‘additional’ inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the
2:00 PM
doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted).
Here, the Court’s focus is on the second and third elements of the Harmon test because there is no dispute that the Judgement is final and on the merits, and that the parties are the same. Specifically, the Court is concerned with whether "willfulness" was actually litigated and necessarily decided in state court.4
For a default judgment to be "actually litigated," the material factual issues must have been both raised in the pleadings and necessary to uphold the default judgment.
Gottlieb v. Kest, 141 Cal. App. 4th 110, 149 (Cal. Ct. App. 2006). An express finding need not have occurred if the court in the prior proceeding necessarily decided the issue. Cantrell v. Cal–Micro, Inc. (In re Cantrell), 329 F.3d 1119, 1124 (9th Cir.2003).
Under California law, an issue is necessarily decided when (1) there are explicit findings of an issue made in a judgment or decision, or (2) or when the issue is a conclusion that must have been necessarily decided by the court. Samuels v. CMW Joint Venture (In re Samuels), 273 F. App'x 691, 693 (9th Cir. 2008).
Olivares argues that "[c]ourts analogize quid pro quo sexual harassment to ‘extortion,’ which is not only an intentional tort but is also a crime." [Dkt. No. 68, pg. 14, lines
24-26]. The Court finds the analogy to be apt. The injury sustained in a quid pro quo sexual harassment claim is a tangible, negative effect on employment terms. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982). The quid pro quo conditioning of these employment terms is, necessarily, an intentional action of the employer. As noted in section III, "willfulness" requires an intentional injury, not merely an intentional act. In the case of quid pro quo sexual harassment, the distinction is illusory – intentionally and negatively conditioning an individual’s employment terms with unwanted sexual advances is the equivalent of intentionally causing an injury. See, e.g., In re Roth, 2014 WL 684630 at *6 (Bankr. D. Colo. 2014)
2:00 PM
(applying issue preclusion to find quid pro quo sexual harassment to be willful, albeit in a non-default situation). Therefore, that part of the Judgment which deals with quid pro quo sexual harassment contains a finding of "willfulness."
The analysis regarding hostile workplace, however, is different. As noted by Olivares, the "hostile workplace" theory of sexual harassment generally requires unwanted sexual advances that have the "effect of unreasonably interfering with an individual’s work performance." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). In contrast to the quid pro quo liability, where the injury results from an employer’s intentional reaction or retaliation, the injury under a hostile workplace theory is subjective and dependent upon the employee’s perspective. An employer is certainly capable of unintentionally creating a hostile work environment.
The issue preclusion section of Olivares’s motion for summary judgment focuses on the quid pro quo theory of sexual harassment. The Court agrees with Olivares’s that "willfulness," as it is used in 11 U.S.C. § 523(a)(6), is implicit within a judgment for quid pro quo sexual harassment. But it is not necessarily implicit in a judgment under the "hostile workplace" theory of sexual harassment – the hostile workplace could be created negligently or unintentionally, based on incorrect assumptions of the employer.
Dason has not advanced any argument why the application of collateral estoppel to the facts of this specific case would not be "fair and consistent with sound public policy." Dason’s opposition concedes Dason was aware that a trial was scheduled and the date when the trial would occur. Yet, after three years of litigation, no appearance was made on behalf of Dason at the trial. Given the extensive litigation that occurred in state court and the fact that the non-appearance of Dason at trial was due to a conscious choice, and part of a deliberate litigation strategy, the Court concludes that application of issue preclusion would continue the preserve the integrity of the judicial system and promote judicial economy. Thus, partial application of issue preclusion would further the policy and interests underlying the doctrine. See, e.g., In re Baldwin, 249 F.3d 912, 919-920 (9th Cir. 2001) (describing policies underlining collateral estoppel).
2:00 PM
Absence of a Genuine Issue of Material Fact
Olivares alternatively argues that the record in this case is sufficient to warrant summary judgment independent of the state court judgment. The Court disagrees. The record in this case essentially consists of: (1) Olivares’s extensive and detailed description of the alleged sexual harassment; and (2) Dason’s denial of the allegations. After the partial application of issue preclusion noted above, the only remaining factual issue is whether the "willfulness" requirement of § 523(a)(6) is satisfied as to that part of the Judgment which arises from a hostile workplace theory of sexual harassment. Here, the Court is simply presented with competing declarations from Dason and Olivares which assert, respectively, that Dason did not intend to create a hostile workplace environment and that it can be inferred that Dason had such an intention. Apart from those declarations, the record contains two pages of a deposition of Cesar Espinoza stating that Olivares complained that Dason grabbed her posterior at some point in time. Given the paucity of the existing record and the unambiguously contradictory declarations of Dason and Olivares, the Court concludes that summary judgment is inapplicable on this record.
The Court is inclined to GRANT summary judgment as to the Judgment in so far as the Judgment relates to a quid pro quo theory of sexual harassment and DENY summary judgment in so far as the Judgment relates to a hostile workplace theory of sexual harassment for failure to satisfy the "willfulness" requirement of § 523(a)(6). The Court may order briefing regarding the apportionment of damages that are not specifically assigned to one category.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
Juddy Olivares Represented By Lazaro E Fernandez
Juddy Olivares Pro Se
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 1/24/18, 3/7/18
Also #16 EH
Docket 1
NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Miller
2:00 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:17-01287 Cisneros v. Diaz
EH
Docket 12
On July 12, 2017, Beatrice Diaz ("Debtor") filed a Chapter 7 voluntary petition. On December 20, 2017, Trustee filed a complaint for: (1) declaratory relief; (2) turnover of property and (3) sale of interest of co-owner in property of the estate against Jose Diaz ("Defendant"), the non-filing spouse of Debtor. On January 24, 2018, the clerk entered default against Defendant. On April 17, 2018, Trustee filed a motion for default judgment.
According to Trustee, in 1994, Debtor and Defendant obtained title to certain real property located at 619 Calle Cuesta, Watsonville, CA 95076 (the "Property") as husband and wife as joint tenants. Trustee requests an order (1) determining that the Property is community, (2) ordering Defendant to turn over the property; and (3) allowing Trustee to sell the property free and clear of Defendant’s interest.
2:00 PM
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, it is not clear that service was proper. Trustee has only served Defendant at the Property, yet Debtor’s Schedule H lists Defendant’s address as 21 Del Brienza, Lake Elsinor, CA 92532, which is also the primary residence of Debtor. Trustee’s declaration does not provide any indication as to why Debtor was not served at the
2:00 PM
address identified in the schedules.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes three causes of action: (1) declaratory relief; (2) turnover; and (3) authorization to sell the Property free and clear of Defendant’s interests.
Regarding the first cause of action, declaratory relief, under California law there is a presumption that property acquired during marriage is community property. See, e.g, In re Valli, 58 Cal. 4th 1396, 1400 (Cal. 2014) ("Property that a spouse acquired during the marriage is community property unless it is (1) traceable to a separate property source, (2) acquired by gift or bequest, or (3) earned or accumulated while the spouses are living separate and apart.") (citations omitted) (collecting cases).
Trustee has presented the an authenticated copy of the grant deed which specifies that Debtor and Defendant acquired the property as husband and wife, and there is no evidence to rebut the community property presumption. Therefore, Trustee has met his burden on the first cause of action.
Regarding the second cause of action, turnover of property, 11 U.S.C. § 541(a)(2) states:
2:00 PM
The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
All interests of the debtor and the debtor’s spouse in community property as of the commencement of the case that is –
under the sole, equal, or joint management and control of the debtor; or
liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor’s spouse to the extent that such interest is so liable.
In California, community property interests are liable for claims against both spouses. See, e.g., CAL. CODE CIV. P. § 695.020. Therefore, the Property is property of the estate subject to turnover under § 542.
Regarding the third cause of action, 11 U.S.C. § 363(h) states:
Notwithstanding subsection (f) of this section, the trustee may sell both the estate’s interest, under subsection (b) or (c) of this section, and the interest of any co-owner in property in which the debtor had, at the time of the commencement of the case, an undivided interest as a tenant in common, joint tenant, or tenant by the entirety, only if ---
partition in kind of such property among the estate and such co- owner is impracticable;
sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co-owners;
the benefit to the estate of a sale of such property free of the
2:00 PM
interests of co-owners outweighs the detriment, if an, to such co- owners; and
such property is not used in the production, transmission, or
distribution, for sale of electric energy or of natural or synthetic gas for heat, light, or power.
Here, because the property in question is community property, § 363(h) is inapplicable. See, e.g., 3 COLLIER’S ON BANKRUPTCY ¶ 363.08[3] (16th ed. 2013) ("Section 363(h) does not apply to property held as community property. Under section 541(a)(1), property of the estate includes all community property to the extent that community property is either under the control of the debtor or liable for claims against the debtor. As a result, the trustee need not satisfy the conditions in subsections 363(h)(1)-(4) to sell community property."). Therefore, this request is is denied.
Amount of Damages
Here, Trustee is not requesting any damages, and, therefore, no evidence is required establishing the amount of damages.
Trustee to explain why it has only served Defendant at the Property instead of serving Defendant at the location identified on Schedule H. If Trustee can establish that service is proper, The Court is inclined to GRANT the motion as to the first and second causes of action, and DENY, as moot, the motion with respect to the third cause of action.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Beatrice A Diaz Pro Se
Defendant(s):
Jose L Diaz Pro Se
Movant(s):
Arturo M. Cisneros Represented By Anthony A Friedman
Plaintiff(s):
Arturo M. Cisneros Represented By Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
2:00 PM
Adv#: 6:17-01287 Cisneros v. Diaz
From: 2/28/18 Also #18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Beatrice A Diaz Pro Se
Defendant(s):
Jose L Diaz Pro Se
Plaintiff(s):
Arturo M. Cisneros Represented By Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
2:00 PM
2:00 PM
Adv#: 6:18-01057 Whitson et al v. Bastorous
Also #21 EH
Docket 5
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 9, 2018, Blaine & Susan Whitston (the "Whitsons"), Union Home Loan Profit Sharing Plan ("UHLPSP"), Gurpaljit Deoll ("Deoll"), Benny Winefeld ("Winefeld") and RM Holdings, LLC ("RM") (collectively, "Plaintiffs") filed a complaint against Mark Bastorous ("Defendant") for non-dischargeability pursuant to
§ 523(a)(2) and (6). On April 9, 2018, Defendant filed a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. Rule 12(b)(6). On April 25, 2018, Plaintiffs filed their opposition.
According to Plaintiffs, Defendant is the co-founder, and now majority owner, of a business entity called USA Investments Group, LLC ("USAIG"). Defendant was also involved in a business entity, MB Capital Group, LLC ("MB Capital"), founded by his
2:00 PM
business partner, Menasseh Bareh ("Bareh"). Defendant is now the sole owner of MB Capital. Defendant’s real estate projects were generally run under the umbrella of Professionals Investment Group, LLC ("PIG"). Among these real estate interests was certain real property located at 0 Talcey Terrace, Riverside, CA 92506 (the "Property"), which, prior to January 2015, was owned by USAIG.
According to Plaintiffs, UHLPSP was approached by two brokers about a loan for MB Capital, which was seeking funds to purchase the Property. Ultimately, MB Capital obtained a loan in the amount of $1,100,000; the loan was serviced by UHLPSP, and the remainder of the Plaintiffs funded the majority of the loan transaction. Defendant allegedly acted as the real estate broker for the sale of the Property by USAIG to MB Capital. Plaintiffs received a first position mortgage on the Property.
According to Plaintiffs, the sale of the Property of the property was actually a "sham" by Defendant, who orchestrated of the sale of the Property from one of his business entities to another in order to obtain a loan, the funds from which were used to pay off other debt. After making payments for more than a year, MB Capital ultimately defaulted on the property, and, eventually, the Property was foreclosed upon, netting Plaintiffs only $774,000.
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
2:00 PM
MONEY JUDGMENT IN NON-DISCHARGEABILITY PROCEEDINGS
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469
B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014). Nevertheless, in the complaint at issue here, Plaintiffs have set forth only two causes of action: (1) non-dischargeability pursuant to 11 U.S.C. § 523(a)(2)(A); and (2) non- dischargeability pursuant to 11 U.S.C. § 526(a). 11 U.S.C. § 523(a) alone is not a basis to enter a money judgment; the plain language of the statute provides that it is a basis for finding a debt to be non-dischargeable. If Plaintiffs seek a money judgment, they need to set forth a non-bankruptcy law cause of action supporting that request.1 In order words, Plaintiffs need to establish that a debt exists under state law. Without that showing, it is impossible to determine the applicable legal analysis.
NON-DISCHARGEABILITY
As 11 U.S.C. § 523(a) makes clear, the first element in any non-dischargeability proceeding is that the debtor owe the plaintiff a debt. The complaint at issue here fails to plead adequate factual matter detailing the debt owing.
The Bankruptcy Code defines "debt" as "liability on a claim." 11 U.S.C. § 101(12). The Bankruptcy Code defines "claim" as "right to payment, whether or not such right is reduced to judgment, liquidate, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(5).
The only paragraph in the complaint which presumably alleges that Plaintiffs have a
2:00 PM
claim against Defendant is paragraph 57, which states: "Plaintiffs are entitled to a return of all the monies that they were compelled to provide in the form of the loan proceeds to Bastorous and Bastorous’ alter egos, agents, dbas, through this fraudulent misrepresentations and concealment." This assertion is implausible on its face, as it appears to assert a debt in the amount of $671,000 based on an unexplained legal theory. According to the complaint, Plaintiffs lent Defendant approximately 61% of
$1,100,000 (or approximately $671,000) and recouped 61% of $774,000 (or approximately $472,140). It would appear, based on the figures provided by Plaintiffs, that Plaintiffs lost $198,860 in their investment – which seems to be the source of the statement in paragraph 58, that "[a]s a direct and proximate result of Defendant’s fraudulent acts, Plaintiffs have suffered damages in a total sum of not less than
$198,000."
Yet, the assertion in paragraph 58 is not adequate to allege a debt – it is simply an allegation of damages, an always necessary element of a legal claim, but not, itself, a legal claim. While it may be possible to piece together fragments of the complaint to craft a coherent, cognizable claim, the nature and theory of such a claim are less than clear. The Court declines to engage in such artistry, especially given that because an independent cause of action is necessary to support the request for a money judgment, it appears likely the complaint will ultimately need to be amended to provide such detail regardless.
The Court is inclined to GRANT the motion and DISMISS the complaint without prejudice to filing an amended complaint within 30 days of the entry of the order. Parties to address referral to mediation.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By
2:00 PM
Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Blaine Whitson Represented By Benjamin Taylor
Susan Whitson Represented By Benjamin Taylor
Union Home Loan Profit Sharing Represented By
Benjamin Taylor
Gurpaljit Deoll Represented By Benjamin Taylor
Benny Winefeld Represented By Benjamin Taylor
RM Holdings, LLC Represented By Benjamin Taylor
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01057 Whitson et al v. Bastorous
Also #20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Blaine Whitson Represented By Benjamin Taylor
Susan Whitson Represented By Benjamin Taylor
2:00 PM
Union Home Loan Profit Sharing Represented By
Benjamin Taylor
Gurpaljit Deoll Represented By Benjamin Taylor
Benny Winefeld Represented By Benjamin Taylor
RM Holdings, LLC Represented By Benjamin Taylor
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Pro Se
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag
MB Capital Group LLC Pro Se
Bernadette Shenouda Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
2:00 PM
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
11:00 AM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Also #2 EH
Docket 3
On December 13, 2017, Sean Coy ("Debtor") filed a Chapter 13 voluntary petition. On February 2, 2018, Debtor filed a motion to avoid the lien of Deutsche Bank National Trust Company ("Deutsche"). On February 15, 2018, Deutsche filed its opposition to the motion to avoid lien. In its opposition, Deutsche argued that a portion of the originally senior lien1, held by FMJM RWL III Trust 2015-1 ("FMJM") is actually subordinate to the originally junior lien2 of Deutsche, due to the execution, after the recordation of Deutsche’s lien, of a mortgage modification without the consent of Deutsche which Deutsche argues materially prejudices its junior lien.
Deutsche argued that because of this subordination, its lien was not wholly unsecured, and therefore could not be avoided.
On February 27, 2018, Deutsche filed a complaint against FMJM seeking declaratory relief. On March 30, 2018, FMJM filed a motion to dismiss for failure to state a claim. On April 12, 2018, Deutsche filed its opposition. By stipulation of the parties, the
11:00 AM
instant hearing has been previously continued for two weeks.
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 464. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id at 678.
DECLARATORY JUDGMENT
FED. R. BANKR. P. Rule 7001(2) & (9) state the following:
An adversary proceeding is governed by the rules of this Part VII. The following are adversary proceedings:
(2) a proceeding to determine the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Rule 4003(d);
(9) a proceeding to obtain a declaratory judgment relating to any of the foregoing
11:00 AM
Here, Deutsche seeks a judgment declaring that its lien is entitled to higher priority that a portion of FMJM’s lien.
The starting point for priority of liens under California law is "first in time, first in right." See generally CAL. CIV. CODE § 2897. Deutsche points to Gluskin v. Atlantic Sav. & Loan Ass’n, 32 Cal. App. 3d 307 (Cal. Ct. App. 1973) and Lennar Ne.
Partners v. Buice, 49 Cal. App. 4th 1576 (Cal. Ct. App. 1996) as standing for the proposition that if a senior lienholder executed a modification which prejudices the junior lienholder, the senior lienholder may lose priority to the extent of the modification. See also MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("If modifications in the senior lien have a material adverse effect on the junior lien either by increasing the risk of default or making protection of the junior lienor’s position potentially more burdensome, then the senior lien may lose priority to the junior lien."). FMJM argues that the cases cited above contain unique factual situations not applicable here and that the California Court of Appeals has constrained the holding of Gluskin and Lennar to specific factual situations. See Friery v. Sutter Buttes Sav. Bank, 61 Cal. App. 4th 869 (Cal. Ct. App. 1998); see also MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("The possible argument from these earlier cases, that all junior lienors, not solely subordinating sellers, should be able to gain priority over modifications to the senior lien made without their consent, has been rejected.").
Recently, citing all three of the above cases, the California Court of Appeals synthesized the existing case law with the following succinct statement:
Subsequent cases have made clear that a material modification of a senior lien, such as an increase in the principal or interest rate, does not result in loss of priority absent contractual subordination. Where a seller agrees to subordinate to construction loans, a material modification of those loans may result in their total loss of priority. However, in the case of a subordinating junior lender, only the modification of the senior lien loses priority.
11:00 AM
Bank of New York Mellon v. Citibank, N.A., 8 Cal. App. 5th 935, 954 (Cal. Ct. App. 2017) (citations omitted).
FMJM implicitly, and to some degree explicitly, asserts that this case is closer to the situation in Friery than the situation in Lennar. This Court disagrees. Here, the notes now held by FMJM and Deutsche were executed simultaneously, as first and second mortgage, with the intention that the security interest evidenced by the second mortgage be subordinated to the security interest evidenced by the first mortgage. In Friery, however, there was originally only a single lien on the property – the original borrowers then sold the property to a third party, who encumbered the property with additional liens. That is not the situation here. Here, the two mortgages were executed simultaneously, similar to the situation in Lennar, and, as a result, the subordination principles outlined by Bank of New York Mellon, Lennar, and Gluskin are applicable.
In distinguishing Lennar from the instant situation, FMJM argues that, unlike the case in Lennar, here the modification did not materially prejudice the junior lienholder, Deutsche. The Court need not reach this argument at the motion to dismiss standard because such an argument is usually factual in nature. See MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("Usually, whether a modification has a material adverse impact on a junior lienor is a question of act, but when reasonable minds cannot differ, the conclusion that the modification resulted in a material adverse effect can be decided as a matter of law."). While FMJM has provided arguments as to why the Deutsche is not prejudiced by the modification, the complaint of Deutsche alleges sufficient factual matter to plausibly allege that material prejudice could plausibly have occurred. FMJM’s assertions on this point are not appropriate at the motion to dismiss stage.
The Court is inclined to DENY the motion to dismiss.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Movant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Kristin)
From: 4/26/18 Also #1
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 39
- NONE LISTED -
Debtor(s):
Ryan Eddie Hinojosa Represented By Steven A Alpert
Movant(s):
Ryan Eddie Hinojosa Represented By Steven A Alpert Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 69
On June 29, 2017, Cary and Amber Surface ("Debtors") filed a Chapter 13 voluntary petition. On September 21, 2017, Debtors’ Chapter 13 plan was confirmed.1
On February 5, 2018, Trustee filed a motion to dismiss for plan delinquency. After Debtors filed an opposition, the original hearing, on March 22, 2018, was continued for one week for a full cure. The day before the continued hearing, Debtors filed a supplemental declaration stating that their payment had still not posted to the Trustee’s website. On March 29, 2018, the Court continued the motion to dismiss for two more weeks, again for a full cure. Instead of curing, Debtors filed a motion to modify plan, and the Trustee filed comments indicating disapproval of the modification. On April 12, 2018, the case was dismissed.
On April 23, 2018, Debtors filed a motion to vacate dismissal, as well as an application shortening time. The Court set a hearing for May 10, 2018 at 11:00 a.m. On April 24, 2018, Trustee filed comments indicating his disapproval of Debtors’ request that the dismissal order be vacated nunc pro tunc, and indicated approval of
11:00 AM
Debtors’ request to vacate dismissal, conditioned on Debtors’ full cure of the delinquency ($2,766) and the Debtors’ submission of their 2017 tax returns and refunds to Trustee.
Regarding Debtor’s request that the vacation of the dismissal order be nunc pro tunc, the Court agrees with the Trustee that such relief is not appropriate. Debtor’s motion does not contain legal authorities that directly support the proposition that the reinstatement of a case can, or should, be ordered nunc pro tunc. It is also not clear why Debtor has made such a request, although Trustee appears to assume that Debtor wishes to have the automatic stay retroactively imposed.
The general rule is "that the reinstatement of a dismissed bankruptcy case does not retroactively reimpose the automatic stay." In re Lomagno, 320 B.R. 473, 479 (B.A.P. 1st Cir. 2005) (collecting cases); see also In re Nagel, 245 B.R. 657, 662 (D. Ariz.
1999) ("By ‘undoing’ the return to the status quo ante through the retroactive application of the stay, the bankruptcy court engaged in a kind of judicial time travel that cannot be reconciled with the law.")
As discussed in In re Lomagno, courts have recognized an exception when there is a violation of due process rights. See generally 320 B.R. at 480 ("Several courts have concluded that reinstatement of a dismissed bankruptcy case does not affect the validity of a creditor’s actions taken during the period the case was dismissed, unless there was a violation of due process rights.) (emphasis in original). Here, there is no indication that the situation fits within the exception to the general rule.
Regarding Debtors’ request that the dismissal order be vacated, Debtors have not provided any legal authority for their request. Debtors’ motion contains two legal sections: (1) a section relating to nunc pro tunc relief; and (2) a section asserting that
11:00 AM
the request is timely under FED. R. CIV. P. Rule 60. Debtors have not, however, indicated which provision in FED. R. CIV. P. Rule 60 is applicable to the instant situation, and have not presented any factual or legal analysis.
Based upon the recommendation of Trustee, however, the Court will vacate the dismissal order if Debtors comply with the conditions specified in the Trustee’s comments.
The Court is inclined to GRANT the motion in accordance with the conditions and limitations outlined in the Trustee’s comments.
APPEARANCES REQUIRED.
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Movant(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 60
- NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Movant(s):
Cary Lee Surface Represented By Lionel E Giron
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cesar Valenzuela Represented By Andrew Nguyen
Joint Debtor(s):
Julissa Valenzuela Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Randy Saulsberry Represented By David L Nelson
Joint Debtor(s):
Kimberly E May Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shirley M Clark Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael A Losoya Represented By Julie J Villalobos
Joint Debtor(s):
Patricia O Losoya Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marsha Elizabeth Hall Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pedro Ramirez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Amanuel Montrell Bradberry Represented By Gary S Saunders
Joint Debtor(s):
Katrina Lashall Bradberry Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elizabeth Taufaao Represented By
Benjamin A Yrungaray
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gwendolyn Priscilla Saunders Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Espinoza Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael James Gresham Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wayne Anthony King Represented By Dana Travis
Joint Debtor(s):
Traci Ann Zweck Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Graham Sirwin Walker Pro Se
Joint Debtor(s):
Excyba Maiela Walker Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Raymond Burrola Represented By Elena Steers
Joint Debtor(s):
Estela Burrola Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Caesar A Rodriguez Represented By Allan O Cate
Joint Debtor(s):
Roxane Arambula Represented By Allan O Cate
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Fox Represented By
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rogelio Ramos Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Escobar Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
From: 11/9/17, 3/8/18 EH
Docket 71
- NONE LISTED -
Debtor(s):
Penelope Ann Young Pro Se
Trustee(s):
Amrane (RS) Cohen (TR) Pro Se
11:01 AM
Docket 206
- NONE LISTED -
Debtor(s):
Mildred Goodridge Crawford Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- NONE LISTED -
Debtor(s):
Donnita M. Oliver Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 205
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Sherry Ann Beardsley Represented By Jeffrey D Larkin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Robert P Contreras Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Marie G Contreras Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 174
- NONE LISTED -
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 73
- NONE LISTED -
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 39
- NONE LISTED -
Debtor(s):
Stacy N Reagor Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Lauren Rode
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt Jessica L Carter
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 5/1/18 EH
Docket 41
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Cecilia Orozco Represented By Majid Safaie
Joint Debtor(s):
Sergio Orozco Represented By Majid Safaie
10:00 AM
Movant(s):
U.S. BANK NATIONAL Represented By Andrew Kussmaul Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
EH
Docket 25
- NONE LISTED -
Debtor(s):
Joseph Manuel Ruiz Represented By April E Roberts
Joint Debtor(s):
Shannon Elizabeth Ruiz Represented By April E Roberts
Movant(s):
Wilmington Trust, National Represented By Maria Tsagaris Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICAN CREDIT ACCEPTANCE LLC
EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Salvador Caridad Rodriguez Represented By Carey C Pickford
Movant(s):
American Credit Acceptance LLC Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Anagabriela Perez Pro Se
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 10
Service is Proper Opposition: Late
Pursuant to the operation of 11 U.S.C. § 362(c)(4)(A)(i), no automatic stay went into effect in the instant case, and, therefore, Movant’s requests for relief to the automatic stay, to the extent that in rem relief is not requested, are DENIED as moot, although the order may make clear there is no stay in effect by virtue of § 362(c)(4)(A)(i).
Regarding Movant’s request for in rem relief from the automatic stay, the Court is inclined to DENY the requests for lack of cause shown. The entire basis for Movant’s request is that the instant case has been filed in bad faith due to two previous Chapter 13 filings in the five months preceding this petition. The docket reflects that each of the two previous cases were filed by the same attorney, Brian Nomi. The first case was dismissed for failure to file required information and the second case was dismissed at the confirmation hearing due to failure to appear at the meeting of creditors. At the time of the second dismissal, the Court imposed a 180-day refiling bar.
Subsequent to the second dismissal, Debtor retained new counsel, Christopher Hewitt. Mr. Hewitt subsequently moved for relief from the second dismissal order in so far as the order contained a re-filing bar. The Court granted that request, and, on April 10,
10:00 AM
2018, Debtor filed a third Chapter 13 case using the services of Mr. Hewitt.
Given the circumstances surrounding the previous two dismissals and the fact that Debtor has not sought to impose the automatic stay, the Court declines to infer that the instant bankruptcy filing evidences bad faith to support the requested in rem relief.
APPEARANCES REQUIRED.
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 6
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Richard H Enstad Represented By Michael L Kellogg
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: ALEXANDER TOFICK DAVID
EH
Docket 15
Service is Proper Opposition: None
The Court is inclined to GRANT the motion, continuing the automatic stay as to Ocwen Loan Servicing LLC only. The Court is inclined to DENY the motion to the extent it seeks to continue the automatic stay as to all creditors because Abbyfield Properties LP had a pending motion for relief from the automatic stay in the previous case, and does not appear to have been served pursuant to FED. R. BANKR. P. Rule 7004. Furthermore, Debtor has not presented clear and convincing evidence adequate to overcome the presumption of bad faith as to Abbyfield Properties LP.
APPEARANCES REQUIRED.
Debtor(s):
Alexander Tofick David Represented By Brad Weil
Movant(s):
Alexander Tofick David Represented By Brad Weil
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: 2ND CHANCE MORTGAGE INC
EH
Docket 10
Service is Proper Opposition: None
Pursuant to Local Rule 4001-1(c)(1)(C)(iv), service is required upon "the holder of a lien or encumbrance against the subject property that is known to the movant, scheduled by the debtor, or appears in the public record." Here, Movant is the junior lienholder on the subject property, yet has not served the senior lienholder with the instant motion. Therefore, the Court is inclined to CONTINUE the motion for service on the first mortgagee, Selection Portfolio Servicing, Inc.
APPEARANCES REQUIRED.
Debtor(s):
Patrick Merrill Represented By Jeremiah D Raxter
Joint Debtor(s):
Gayle Merrill Represented By
Jeremiah D Raxter
10:00 AM
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
From: 12/13/16, 3/7/17, 5/30/17, 7/25/17, 9/26/17, 10/31/17, 11/7/17
EH
Docket 8
- NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
2:00 PM
EH
Docket 56
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 11 voluntary petition. On February 27, 2018, the Court approved Debtor’s application to employ Goe & Forsythe, LLP ("Counsel") as bankruptcy counsel.
On May 1, 2018, Joana Johnson ("Joana"), Debtor’s ex-wife, filed a proof of claim in the amount of $6,134,701.47 ("Claim 8"), of which $1,144,497.36 was identified as entitled to priority, and $309,233.74 was identified as secured by certain real property in Temecula, California. On May 7, 2018, Joana filed a complaint against Debtor to determine her interest in, and compel turnover of, certain funds held in Counsel’s client trust account.
On April 24, 2018, Debtor filed the instant motion seeking Court approval of the payment of the mediation fee from the DIP account.
2:00 PM
The Court supports the parties pursuit of a solution through mediation, and, in the absence of any opposition, is inclined to GRANT the motion pursuant to the two issues below.
First, it not clear why the parties have not sought to defray costs by utilizing the United States Bankruptcy Court for the Central District of California’s Mediation Program.
Second, the motion states that the parties "have preliminarily agreed to a $7,500 cap on the fee for the mediation, which Debtor and Joana have agreed to split evenly." Nevertheless, the motion also states that "Debtor requests authority to pay Debtor’s portion of the mediation from Debtor’s debtor-in-possession account up to the amount of $5,000." It is unclear whether the two quoted sections evidence an oversight on the part of the Debtor or Counsel or whether the discrepancy reflects an anticipation that the preliminary cap will be exceeded.
APPEARANCES REQUIRED.
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
Movant(s):
Vance Zachary Johnson Represented By Robert P Goe
11:00 AM
Also #12 EH
Docket 13
- NONE LISTED -
Debtor(s):
Latoya Joy Armstrong Pro Se
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By James P Doan
Movant(s):
Ronald Wayne Cloyd Represented By James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Shawn Michel Smigel Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Robert Whitmore (TR) Represented By Julie Philippi Todd L Turoci
11:00 AM
Also #8 EH
Docket 102
- NONE LISTED -
Debtor(s):
James Lloyd Walker Pro Se
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
11:00 AM
From: 5/11/16, 6/8/16, 6/29/16, 8/31/16, 10/5/16, 11/9/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18
Also #11 EH
Docket 322
05/11/2016
Based on the representations made to the Court by counsel for the Parties that negotiations are ongoing, and based on the consent of the Parties to a continuance, the Court shall CONTINUE the hearing on the Motion to June 8, 2016 at 11:00 a.m.
APPEARANCES ARE WAIVED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Also #10 EH
Docket 49
- NONE LISTED -
Debtor(s):
Bertrand Tenke Kengni Represented By Terrence Fantauzzi
Movant(s):
Helen R. Frazer (TR) Pro Se
Trustee(s):
Helen R. Frazer (TR) Pro Se
11:30 AM
EH
Docket 58
05/16/18
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professional, the following administrative claims will be allowed:
Trustee Fees: | $ 3,250 |
Trustee Expenses: | $ 88.78 |
Attorney Fees: | $8,960 |
Attorney Costs: | $141.30 |
The applications for compensation are approved and the trustee and associated professional may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Shawn Michel Smigel Represented By Jenny L Doling Summer M Shaw
11:30 AM
Trustee(s):
Robert Whitmore (TR) Represented By Julie Philippi Todd L Turoci
11:30 AM
Also #4 EH
Docket 102
- NONE LISTED -
Debtor(s):
James Lloyd Walker Pro Se
Movant(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
Trustee(s):
Robert Whitmore (TR) Represented By Franklin C Adams Cathy Ta
11:30 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By James P Doan
Movant(s):
Ronald Wayne Cloyd Represented By James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:30 AM
Also #6 EH
Docket 49
BACKGROUND
On April 27, 2013, Bertrand Tenke Kengni ("Debtor") filed a petition for chapter 7 relief. Helen Frazer is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate is an interest in real property located at 813 North Campus Ave (the "Property").
On April 18, 2018, the Trustee filed her Motion to Sell Property of the Estate Free and Clear of Liens (the "Motion").
Service of the Motion was proper as to the Debtor, Carisa Kengni and Fernando Pearson, as well as all creditors, and no opposition has been filed.
Sale of Estate Property Pursuant to Section 363(b)
The trustee, after notice and a hearing, may sell property of the estate. 11
U.S.C. § 363(b)(1); see also Commodity Futures Trading Comm’n v. Weintraub, 471
U.S. 343, 352 (1985). The sale must be in the best interests of the estate and the price must be fair and reasonable. In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985); see also In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991)(sale must have fair/reasonable price, accurate/reasonable notice to creditors and sale made in good faith). The trustee must articulate some "business
11:30 AM
justification" for selling estate property out of the "ordinary course of business" before the court may approve the transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); In re Ernst Home Ctr., Inc., 209 B.R. 974, 979 (Bankr. W.D. Wash. 1997). Objections to sale that are based on inadequacy of price are often resolved the court ordering an auction, which may occur in open court. Simantrob v. Claims Prosecutor, LLC (In re Lahijani), 325 B.R. 282, 287 (9th Cir. BAP 2005) citing Fed. R. Bankr. P. 6004(f).1
In support of the proposed sale to Yuefu Yu and Yi Zhao (collectively, "Buyers"), the Trustee sets forth the following figures and analysis:
Sale Price | $365,000 |
Ditech | $189,000 |
Debtor’s Claim of Exemption | $19,621.59 |
Closing Costs (8%, including 6% broker commission) $29,378.41 Net Equity for the Estate: $127,000
Based on these figures, the proposed sale to Purchaser appears reasonable and the Trustee’s business justification for the sale warrants granting of the Motion.
Generally, bidding procedures must be untainted by self-dealing, encourage bidding and be fair/reasonable/serve the best interests of the estate. See In re Crown Corp., 679 F.2d 774 (9th Cir. 1982). Here, the Trustee has proposed bidding procedures which require an initial overbid of $1,000 above the proposed purchase
11:30 AM
price of $365,000, with each additional bid in increments of $1,000, and a deposit of
$7,500 provided to the Trustee 5 days prior to the sale. The Trustee’s proposed bidding procedures are reasonable and encourage bidding and are therefore approved.
The proposed sale has been brought in good faith and has been negotiated on an "arms- length" basis. The court, in Wilde Horse Enterprises, set forth the factors in considering whether a transaction is in good faith. The court stated:
‘Good faith’ encompasses fair value, and further speaks to the integrity of the transaction. Typical ‘bad faith’ or misconduct, would include collusion between the seller and buyer, or any attempt to take unfair advantage of other potential purchasers. And, with respect to making such determinations, the
court and creditors must be provided with sufficient information to allow them to take a position on the proposed sale.
Id. at 842 (citations omitted).
Here, the Trustee marketed the Property via her Broker, Neiman Realty, which marketed the Property. The Buyers’ all cash offer is the highest and best offer received by the Trustee since listing the Property in the winter of 2017. (Trustee Decl.
¶9). The sale appears to be made in good faith.
A trustee may sell estate property "free and clear" of third party interests in the property, such as co-ownership interest, liens, claims and encumbrances. See 11
U.S.C. § 363(f). A sale free and clear of third party interests pursuant to section 363 is authorized only if one of the following conditions is met: (1) sale authorized by applicable nonbankruptcy law; (2) third party whose interest will be affected consents;
the affected interest is a lien and the sale price is greater than total value of all liens on the property; (4) the affected interest is a bona fide dispute; or (5) the third party whose interest will be affected could be compelled to accept a money
11:30 AM
satisfaction of the interest. 11 U.S.C. § 363(f)(1)-(5).
Here, the Trustee seeks a sale free and clear of any interest of Carisa Kengni’s nephew, Fernando Pearson Jr. ("Pearson"), to whom she attempted to transfer, post- petition, an interest in the Property. The Trustee’s Declaration sufficiently details that there are bona fide disputes as to any interest that could be asserted by either Carisa Kengni or Pearson because the attempted transfers of interests in the Property postpetition likely constitute avoidable postpetition transfers. Based on the foregoing, the Court is inclined to grant the request to sell the Property free and clear of the non- Debtor interests of Carisa Kengni (already resolved via 9019) and of any interest held by Pearson.
Based on the foregoing, the Court is inclined to GRANT the Motion as follows:
Approving the sale of the Property to the Buyers or successful overbidder;
Providing that the Trustee is authorized and empowered to execute and deliver on behalf of the estate any and all documents as reasonably may be necessary to implement the terms of the proposed sale;
Providing that the notice given by the Trustee in connection with the sale and hearing thereon is adequate, sufficient, proper and complies with all applicable provisions of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure;
Approving the overbid procedures;
Approving payment of the Ditech deed of trust and any unpaid property taxes from escrow;
Approving payment of a 6% Broker’s commission at close without further order;
Authorizing the sale of the Property free and clear of any interest of Pearson;
Authorizing Trustee to pay Debtor his allowed exemption; and
Waiving the 14-day stay prescribed by rule 6004(h) of the Federal Rules of Bankruptcy Procedure.
Finally, the Court does not make a good faith finding at this time because no
11:30 AM
declaration was filed by the Buyers establishing their lack of relationship to interested parties. The Court shall permit a supplemental declaration to be filed prior to entry of the order at which time the Court can approve the Buyers as Good Faith Buyers under
§363(m).
APPEARANCES REQUIRED.
Debtor(s):
Bertrand Tenke Kengni Represented By Terrence Fantauzzi
Movant(s):
Helen R. Frazer (TR) Pro Se
Trustee(s):
Helen R. Frazer (TR) Pro Se
11:30 AM
From: 5/11/16, 6/8/16, 6/29/16, 8/31/16, 10/5/16, 11/9/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18
Also #5 EH
Docket 322
05/11/2016
Based on the representations made to the Court by counsel for the Parties that negotiations are ongoing, and based on the consent of the Parties to a continuance, the Court shall CONTINUE the hearing on the Motion to June 8, 2016 at 11:00 a.m.
APPEARANCES ARE WAIVED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:30 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:30 AM
Also #1 EH
Docket 13
The Office of the United States Trustee ("UST") moves this Court for an order to show cause why John Alarcon ("Alarcon"), bankruptcy petition preparer, should not be held in contempt of Court. Service of the Motion appears proper and no opposition has been filed.
In support, the UST has provided evidence that Alarcon previously committed violations of §110 while performing BPP services and was eventually enjoined from performing BPP services in February 2017 by Judge Clarkson for his failure to comply with prior orders (the "Injunction Order"). Despite that injunction and Alarcon’s failure to seek to lift the injunction, the UST has provided evidence that Alarcon aided the Debtor in the instant case in the filing of her bankruptcy petition.
The evidence sufficiently demonstrates Alarcon has been performing BPP services in violation of the Injunction Order.
Based on the foregoing, the Court is inclined to GRANT the Motion and issue an order to show cause why Alarcon should not be held in contempt.
APPEARANCES WAIVED. UST to lodge a proposed order to show cause re: contempt within 7 days.
11:30 AM
Debtor(s):
Latoya Joy Armstrong Pro Se
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
EH
Docket 6
05/16/2018
BACKGROUND
On December 8, 2017, Mark Bastourous and Bernadette Shenouda (collectively, "Debtors" or "Defendants) filed their petition for chapter 7 relief.
On March 12, 2018, Mona and Rafet Gerges and St. Mary Properties, LLC (collectively, Plaintiffs") filed their complaint for dischargeability determination under
§§ 523(a)(2), (a)(4), and (a)(6) and for a finding of Alter Ego liability and an award of attorneys’ fees and costs (the "Complaint"). The Complaint alleges generally that the Plaintiffs made loans in the original amount of $540,000 plus interest at 1.66% every six months (the "Advances") to Defendants’ wholly owned entity, MRM Investment Group Inc. ("MRM") and by deposits with Defendants’ wholly owned corporate entity Professional Investment Group, LLC ("PIG"), secured by real property located at 2311
S. 6th Avenue, Arcadia, CA 91006 (the "Arcadia Property"). Plaintiffs further allege as follows:
Plaintiffs interest in the Arcadia Property was secured by a Deed of Trust recorded May 4, 2015 (Compl. ¶10)
A Deed of Trust in favor of the Bleeker Family Trust was recorded on April 20, 2016, securing a note in the principal amount of $735,000 (Compl. ¶11);
A Trustee’s Deed Upon Sale following a foreclosure sale was recorded on January 10, 2017 (Id.);
On March 5, 2017, the Bleeker Family Trust sold the Arcadia Property for
$880,000 to recover indebtedness due of $869,428.05 (Id.);
2:00 PM
Plaintiffs made the Advances to fund the remodeling of the Arcadia Property so that it would be fixed and flipped at a profit, from which Plaintiff would be paid on the Maturity Date (Compl. ¶12);
Plaintiff in a senior priority position to the Bleeker Family Trust, was not paid any amount from the proceeds (Compl. ¶13);
Plaintiffs made Advances to Defendant because they knew them and trusted them (Compl. ¶14);
In or about November 15, 2015, after the last of the Advances was made to Defendants, Defendants admitted to Plaintiffs that the Advances were not secured by the Arcadia Property (Compl. ¶15);
Defendant further represented to Plaintiff that an attorney, Marian Bishay (SBN 195315), would form a new corporation for them, to be known as St. Mary Properties, LLC ("St.Mary"), and that St. Mary would enter into a new promissory note with Defendant, secured by a different property owned by Defendant (Compl. ¶16);
Defendant further represented to Plaintiff that they would enter into a Secured Promissory Note and Profit Participation Agreement ("Secured Note") in the original amount of $552,000, with a deed of trust recorded in a third position on an office building in Santa Ana, located at 1665 E 4th Street, Santa Ana, CA ("Office Property").
On November 15, 2015, Plaintiff executed a Deed of Trust and Assignment of Rents ("Deed of Trust"), in which it is stated it is to secure performance under a promissory note, dated as of June 28, 2015, by and between St. Mary Properties, LLC, on the one hand, and PIG, on the other hand (Compl. ¶18);
The Office Property was later foreclosed by a senior lender (Compl. ¶22);
The Articles of Organization for St Mary were not filed until August 6, 2016, or nine months after the Deed of Trust was executed (Compl. ¶21).
On April 14, 2018, Debtors filed their Motion to Dismiss the Complaint ("Motion"). The Plaintiffs opposed the Motion on May 2, 2018 ("Opposition") and Debtors filed their reply to the Opposition on May 9, 2018. Service is not at issue.
DISCUSSION
Under Civil Rule 12(b)(6), made applicable in adversary proceedings through
2:00 PM
Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a Civil Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). However, the trial court need not accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under Civil Rule 12(b)(6), a plaintiff must aver in the complaint "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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under Civil Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson
v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
Allegations regarding fraud are subject to a heightened pleading standard.
Civil Rule 9(b), made applicable to adversary proceedings by Rule 7009, requires that a plaintiff must state "with particularity the circumstances constituting fraud. " The
Ninth Circuit has provided guidance for the "with particularity" requirement by stating that to comport with Civil Rule 9(b) the complaint must (1) specify the averred fraudulent representations; (2) aver the representations were false when made; (3) identify the speaker; (4) state when and where the statements were made; and (5) state the manner in which the representations were false and misleading. Lancaster Cmty.
Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991).
Because fraud encompasses a wide variety of circumstances, the requirements of Civil Rule 9(b)—like Civil Rule 8(a)(2)—should provide all defendants with sufficient information to formulate a response. Therefore, the complaint cannot lump multiple defendants together but must "inform each defendant separately of the allegations surrounding [its] alleged participation in the fraud." Swartz v. KPMB LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).
2:00 PM
However, in Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997), the Ninth Circuit acknowledged that "[e]very transaction alleged to be fraudulent does not have to be detailed in the complaint." Instead, the Rule 9(b) requirement is satisfied where the Complaint sets forth an explanation as to why the transactions were false or misleading. See Cooper v. Pickett, 137 F.3d at 625; see also In re Dreier LLP, 453
B.R. 499, 508-09 (Bankr. S.D.N.Y. 2011) ("Under appropriate circumstances, multiple transactions will be collapsed and treated as steps in a single transaction for analysis under the fraudulent conveyance laws.").
The Defendants assert that the claim for fraud is insufficiently stated. The Court agrees.
In order to maintain a claim for actual fraud, the plaintiff must provide sufficient factual content from which a court can derive that:
the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations, and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975)
Allegations regarding fraud are subject to a heightened pleading standard.
Civil Rule 9(b), made applicable to adversary proceedings by Rule 7009, requires that a plaintiff must state "with particularity the circumstances constituting fraud. " The
Ninth Circuit has provided guidance for the "with particularity" requirement by stating that to comport with Civil Rule 9(b) the complaint must (1) specify the averred fraudulent representations; (2) aver the representations were false when made; (3) identify the speaker; (4) state when and where the statements were made; and (5) state the manner in which the representations were false and misleading. Lancaster Cmty.
Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991).
Because fraud encompasses a wide variety of circumstances, the requirements
2:00 PM
of Civil Rule 9(b)—like Civil Rule 8(a)(2)—should provide all defendants with sufficient information to formulate a response. Therefore, the complaint cannot lump multiple defendants together but must "inform each defendant separately of the allegations surrounding [its] alleged participation in the fraud." Swartz v. KPMB LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).
In the Complaint, Plaintiffs imply misrepresentations were made but do not identify which Debtor made the misrepresentations, when and where the statements were made or the manner in which the statements were misleading. It is, for example, asserted in the Opposition that a Defendant (though it is not clear which one) represented that the Advances would be secured by the Arcadia Property. (Opp’n at 2). However, the Complaint does not actually state that a representation was made regarding the debt being secured. Instead, the Complaint states generically that the "Note, was to be secured by a deed of trust". The Complaint then goes on to state that the Note was recorded on May 4, 2015, and also provides an instrument number. (Compl. at ¶11). The Complaint later indicates that Defendant (again, it is not clear which Defendant) admitted that the Advances were not secured by the Arcadia Property. (Compl. at ¶15). The series of allegations is confusing as to what the Plaintiffs understood was happening and what misrepresentations were made by the Defendants, even in a general sense. Similarly, as to the Office Property, it is not clear what, if any misrepresentation occurred, and if a misrepresentation occurred, how such misrepresentation caused a loss to the Plaintiffs where a senior lender was the one to foreclose on the Office Property.
If, for example, the Plaintiffs had alleged that Defendant Bastouros stated he would record the Deed of Trust on behalf of the Plaintiffs and then failed to do so, which ultimately resulted in Plaintiffs losing their investment when the Property was foreclosed, that statement would constitute a misrepresentation. However, here, there is basically no misrepresentation alleged. Nor is it clear how the foreclosure by the senior lender as to the Office Property was caused by any fraud or misrepresentation of the Defendants.
The Court is inclined to GRANT the Motion as to the First Claim and dismiss with leave to amend.
2:00 PM
Section 523(a)(4) provides in relevant part that a discharge under section 727
does not discharge an individual debtor from any debt for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. 11 U.S.C. § 523(a)(4).
First, whether a relationship is a "fiduciary" one within the meaning of section 523(a)(4) is a question of federal law. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). The broad, general definition of "fiduciary" is inapplicable in the dischargeability context. Id. at 796. Instead, the fiduciary relationship must be one arising from an express or technical trust that was imposed before and without reference to the wrongdoing that caused the debt. Id. Here, there is no express trust or trust res as required for a finding of fraud or defalcation while acting in a fiduciary capacity. See id. In their Opposition, the Plaintiffs assert that the Defendants acted in an investment-advisory capacity for the Plaintiffs and then cite to a case indicating that a real estate broker is a fiduciary under § 523(a)(4). (Opp’n at 6). The Opposition’s legal authority and argument do not cure the failure of the Complaint to allege that an investment-advisory relationship existed between the parties nor does the Opposition provide legal authority for the proposition that the relationship between the parties created a financial advisor relationship or that such relationship would constitute a fiduciary relationship under § 523(a)(4). The Court is inclined to GRANT the Motion as to the Second Claim and dismiss with leave to amend. Finally, the Court concurs that because larceny and embezzlement are neither alleged nor addressed in the Opposition, to the extent the Plaintiffs sought relief on these grounds, the Court is also inclined to GRANT as to these two grounds.
Section 523(a)(6) provides in relevant part that a discharge under section 727 does not discharge an individual debtor from any debt for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a) (6).
First, for an injury to be willful, the debtor must have a subjective motive to inflict injury or must believe that injury is substantially certain to occur as a result of his or her conduct. Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir. 2001). In other words, the debtor must have acted with "actual knowledge that harm to the creditor was substantially certain" to result. In re Su, 290 F.3d at 1146; Ditto v.
2:00 PM
McCurdy, 510 F .3d 1070, 1078 n. 8 (9th Cir. 2007).
In addition to the willfulness requirement, a claim under § 523(a)(6) requires that the injury be caused with malice. See Su at 1146-47. A ‘malicious' injury involves
(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse. Id. (internal citations omitted).
Here, as explained in SECTION I regarding the fraud claim, the Complaint has inadequately alleged actions or misrepresentations by the Defendants to establish a plausible claim that Defendants acted willfully and maliciously. The Complaint in its current form establishes little more than that Defendants induced Plaintiffs to loan them money in order to flip houses.
The Opposition indicates that the Defendants induced Plaintiff to record a reconveyance so that the Plaintiffs could induce another victim to loan money on the representations of sufficient equity in the Arcadia Property. Such allegations would be more supportive of Plaintiffs’ claims. However, these facts were not alleged in the Complaint. The Complaint is vague as to why the reconveyance occurred. If the Defendant made a misrepresentation to Plaintiffs to induce them to reconvey the Deed of Trust on the Arcadia Property then Rule 9 compels Plaintiffs to set these allegations forth in the Complaint.
Based on the foregoing, the Court is inclined to GRANT the Motion as to the Third Claim for Relief.
The sole argument by Defendants to support dismissal of the Fourth and Fifth Claims for relief is that they seek substantive relief which is not available in a nondischargeability action. The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469 B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir.
2014).
Based on the foregoing, the Defendants have failed to establish that substantive claims specifically related to dischargeability complaints cannot be
2:00 PM
brought in the bankruptcy court. Nonetheless, the Motion is GRANTED as to the Fourth and Fifth Claims with leave to amend on the sole basis that the Court has granted the Motion as to the First through Third Claims for relief as the Fourth and Fifth Claims cannot stand alone.
TENTATIVE RULING
The Court is inclined to GRANT the Motion dismissing the Complaint in its entirety with leave to amend.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
From: 5/9/18 Also #13
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Docket 3
05/16/2018
Plaintiff, having filed an Amended Complaint on May 3, 2018, the Court is inclined to DENY the Motion as moot.
APPEARANCES WAIVED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
Docket 7
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mike Bareh Represented By
2:00 PM
Mirco J Haag
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
Docket 3
05/16/2018
Plaintiff, having filed an Amended Complaint on May 3, 2018, the Court is inclined to DENY the Motion as moot.
APPEARANCES WAIVED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01021 Cisneros v. Ganahl Lumber Company, A California Corporation
From: 3/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Defendant(s):
Ganahl Lumber Company, A Pro Se
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Plaintiff(s):
Arturo Cisneros Represented By Todd A Frealy Lindsey L Smith
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
2:00 PM
Adv#: 6:17-01085 PRINGLE v. Winn et al
From: 7/12/17, 8/23/17, 10/25/17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Ralph Winn Represented By
Douglas A Plazak
Sterling Security Service, Inc. Represented By Seth W Wiener
Natalia V Knoch Represented By Seth W Wiener
Steven B Knoch Represented By Seth W Wiener
Stacy Winn Represented By
2:00 PM
Douglas A Plazak
Plaintiff(s):
JOHN P PRINGLE Represented By Charity J Miller Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Miller
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
Docket 90
On October 25, 2013, Douglas Jay Roger ("Debtor" or "Defendant") filed his petition for chapter 7 relief. On September 22, 2014, Revere Financial Corporation ("Revere") and Jerry Wang ("Receiver") (collectively, "Plaintiffs") filed a complaint for determination of the dischargeability of debts pursuant to §§ 523(a)(2)(B), 523(a) (2)(A), 523(a)(4)(A), 523(a)(4) & 523(a)(6); and objecting to the Debtor’s discharge pursuant to §§727(a)(3), 727(a)(4)(A), 727(a)(4)(B), 727(a)(5), & 727(a)(7)
("Complaint" or "Dischargeability Action").
On October 6, 2014, the Debtor filed a Motion to Dismiss, to Strike, and for a More Definite Statement (the "MTD"). After numerous hearings on the merits of the Complaint, followed by numerous months of joint stipulations between the parties to continue the hearing for settlement discussions, an order granting in part and denying in part the MTD was entered on December 20, 2017. On February 20, 2018, the Plaintiffs filed their First Amended Complaint (the "FAC"). On March 14 and 21, the parties stipulated to a continuance and extension of time for Defendant to respond to the FAC. On April 24, 2018, the Defendant filed a Motion to Dismiss and/or Strike the FAC (the "Motion"). Plaintiffs filed Opposition to the Motion on May 2, 2018. On the same date, the Trustee for the Douglas J. Roger MD. Inc. ("DJRI") bankruptcy filed a joinder to the Plaintiffs’ Opposition ("Opposition"). The Defendant filed his reply on May 10, 2018 ("Reply").
2:00 PM
Dismissal pursuant to Rule 8
The Defendant asserts that dismissal is warranted because the First Amended Complaint violates Rule 8 in that Plaintiffs fail to provide a short and plain statement of the claims. Instead, Defendant argues that the FAC is "filled with subordinate clauses and contains extensive elaboration and superfluous details that make it non- compliant with the provisions of [Rule 8]." (Mot. at 7:12-16).
In response to Defendant’s argument, Plaintiff correctly cites to Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008). In Hearns, the Ninth Circuit extensively discusses cases in which dismissals under Rule 8 have been upheld:
Not only was the first complaint at issue in that case lengthy; it set out its claims in two sentences, which comprised 30 lines, without specifying which of the 20 named defendants were liable for which claims … We affirmed the district court's dismissal of the final amended complaint, which we described as ‘argumentative, prolix, replete with redundancy, and largely irrelevant’ (McHenry v. Renne, 84 F.3d 1172 (9th Cir.1996));
In Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 671 (9th Cir.1981), we upheld a Rule 8(a) dismissal of a 48–page complaint that contained an additional 23 pages of addenda and exhibits. The complaint was characterized as " ‘verbose, confusing and almost entirely conclusory.’ " Id. at 674;
In Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir.1980), the complaint was 30 pages long. It was "impossible to designate the cause or causes of action attempted to be alleged in the complaint." 614 F.2d at 1223. The complaint was described as a "confusing statement of a non- existing cause of action" and as "confusing, distracting, ambiguous, and unintelligible";
The Ninth Circuit further indicated that two older cases, Gillibeau v. City of Richmond, 417 F.2d 426, 431–32 (9th Cir.1969) and Agnew v. Moody, 330 F.2d 868, 870–71 (9th Cir.1964), narrowly permit dismissal under Rule 8(a)(2) where a complaint is "so verbose, confused and redundant that its true substance, if any, is well disguised"
2:00 PM
Here, the Court initially notes that Defendant fails to point to any specific
portions of the FAC which support a finding that the allegations are so verbose, confused or redundant as to conceal the true substance of the Plaintiff’s claims or that dismissal is otherwise warranted under Rule 8(a) or (d). Nor does the Court’s review of the FAC raise any concerns that the Defendant could be confused about what claims are being alleged against him. Finally, the Defendant fails to distinguish Hearns or otherwise provide binding caselaw to support his Rule 8 arguments. The Court is inclined to DENY the request for dismissal under Rule 8 and declines to strike any portion of the FAC.
Defendant seeks dismissal asserting that Plaintiffs have failed in their duty to diligently prosecute the action, and Debtor has been prejudiced by their delay. (Mot. at 5:15-17).
In response, Plaintiffs primarily point out that the Defendant expressly requested and/or agreed to several stipulations to continue the matters in the instant action. A review of the docket confirms that in most instances, Defendant has agreed affirmatively or tacitly to the continuances that he now asserts caused him prejudice. For example, in his declaration, Dr. Roger opines that the Court’s tentative ruling granting in part and denying in part his first Motion to Dismiss was issued on November 5, 2014, but that the order was not entered until December 20, 2017. (Roger Decl. ¶¶ 7-10). Defendant, however, glaringly ignores that he signed numerous stipulations continuing the final hearing on the Motion to Dismiss during that period. In fact, the final order (which was one approved as to form and content by all of the parties) illustrates that the Defendant consented to review of the final order by the other parties and to their approval prior to lodgment of the order. In this context, the Roger Declaration reveals itself to be a self-serving and misleading statement of the history of this case. Now the Court shall turn to the merits of the argument.
A trial court is required to consider the following five factors in determining whether to dismiss an action for lack of prosecution: (1) the public's interest in expeditious resolutions of litigation, (2) the court's need to manage its docket, (3) the
2:00 PM
risk of prejudice to defendants, (4) the public policy favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions. In re Osinga, 91 B.R. 893, 894 (9th BAP Cir. 1988).
The Public’s Interest in Expeditious Resolutions of Litigation
In support of the Motion, Defendant cites heavily to Osinga for the proposition that the Plaintiffs’ alleged ‘unreasonable’ delay in moving the case forward has prejudiced the Defendant and warrants dismissal. Defendant particularly underscores the fact that in a bankruptcy case, parties seeking to have their debts determined nondischargeable are required to "litigate their claims with reasonable promptitude." (Reply at 5)(citing Osinga at 895).
In Osinga, the BAP noted that "defendants/appellees had seen no action and had heard nothing from the plaintiffs/appellants regarding [the] matter for twenty-nine months." Defendant appears to argue that the Osinga Panel’s decision rested heavily on the duty of the plaintiffs at all times to move the case forward. However, Osinga is distinguishable from the instant case because in Osinga, the discussion regarding the plaintiff’s duty to move a case forward was in the context of a record demonstrating a complete absence of any actions taken by plaintiff for a period of twenty-nine months. Additionally, Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829 (9th Cir.1986) (cited in Osinga to support the proposition that delay caused by defendants does not obviate the possibility that dismissal may still be appropriate), involved a case in which neither side was prepared for trial. Thus, in Thompson, the fact that the defendant was not prepared did not relieve plaintiff from his separate obligation to prepare for trial (especially where plaintiff and defendant had been granted numerous continuances to prepare). The instant case is readily distinguishable. This is a case where there have been numerous stipulations signed by all of the parties, including Defendant, consenting to continuances and extensions of time. Moreover, the FAC reflects that the Dischargeability Action involves complex factual and legal issues related to the numerous adversary actions filed in the Roger and DJRI bankruptcy cases and it is not unreasonable to believe as indicated in the signed stipulations of the parties, that settlement negotiations have been ongoing for a
2:00 PM
lengthy period of time. Here, the Court does not find that Plaintiffs caused an unreasonable delay or that they failed in their duty to diligently prosecute the case. Thus, this factor weighs against granting of the Motion.
The Court’s need to Manage its Docket
The first two of the four policy considerations suggest that rule 41(b) is in large part a housekeeping measure related to the efficient administration of judicial business for the benefit of all litigants with cases pending. Nealey v. Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1279 (9th Cir. 1980). As to this factor, the Court finds that permitting the action to move forward will not prejudice other litigants and as such this factor weighs against granting of the Motion.
Risk of Prejudice to Defendants
The plaintiff, of course, "has the ultimate burden of persuasion both as to the excuse for his own delay and as to lack of prejudice to the defendant." Nealey at 1280 (citing Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir. 1963).
(W)hen such a plaintiff has presented evidence excusing his own delay, he should (not) be automatically barred unless he also presents anticipatory evidence to negate prejudice on the part of the defendant, an issue as to which the defendant, with his greater knowledge, ought to be required to come forward.
Id. As a threshold matter, the Court has already determined that the alleged delay has not been unreasonable and that given the consent of Defendant to numerous continuances, even if there was prejudice to Defendant, such prejudice was not caused by actions of the Plaintiffs.
As to legal prejudice, the Defendant has provided evidence that he is unable to locate one of the witnesses that would have testified on his behalf - Mr. Gamboa, the original loan underwriter for 1st Centennial Bank. However, the Court finds there has not been actual prejudice stemming from the actions of Plaintiffs. In Nealey, the Court
2:00 PM
evaluated in a detailed manner whether actions by the plaintiffs could or would prejudice the defendants. Such analysis requires more detailed information regarding when the Defendant allegedly lost contact with Mr. Gamboa and whether Defendant made diligent efforts to keep in contact with his witnesses when he agreed to the numerous continuances that caused the delay in prosecution of the Dischargeability Action. As the Ninth Circuit held in Nealey, "the irretrievable loss of evidence may of course be … serious. Fairness dictates, however, that a plaintiff not be deprived of his cause of action if the missing evidence would have been lost even absent delay.
Rather, the loss must in some way be causally related to the plaintiff's conduct." Nealey at 1281 (emphasis added). Here, the Court finds insufficient evidence that any specific conduct by Plaintiffs have caused actual prejudice with regard to Mr.
Gamboa’s absence. Additionally, the Defendant has not indicated whether and to what extent other employees or former employees of 1st Centennial Bank may be able to testify on behalf of the Defendant.
As to the remaining bases for prejudice alleged by Defendant, i.e., loss of income and reputation, the Court SUSTAINS the evidentiary objections of RFC. The Defendant’s assertions that the Dischargeability Action have caused him damage are without foundation, are speculative and constitute little more than unsupported conjecture on the part of Defendant. As such the Court strikes the Defendant’s statements as inadmissible. Alternatively, even assuming the Court were to credit the Defendant’s statements, the Defendant has not shown that actions by Plaintiffs have had a direct causal relationship to his loss of income and reputation.
Based on the foregoing, the Court finds that Defendant has failed to demonstrate legal prejudice causally related to any actions by Plaintiffs. This factor weighs against granting the Motion.
Public Policy Favoring Disposition of Cases on their Merits
Defendant does not address this factor. However, the Court finds that this factor weighs in favor of a decision on the merits and against granting of the Motion.
Availability of Less Drastic Sanctions
2:00 PM
Defendant also does not address this factor. However, in the event the
Defendant had been able to demonstrate legal prejudice causally related to Plaintiffs actions, various evidentiary sanctions and/or punitive monetary sanctions could have been considered. Dismissal, however, is an extreme sanction and given the consent of Defendant to numerous continuances, is wholly unwarranted in this case. This factor weighs against granting of the Motion.
The Court, having evaluated all of the factors under Rule 41 finds that the weight of all factors favors denial of the Motion.
Finally, Defendant complains that Receiver’s nunc pro tunc order authorizing the filing of a complaint in the bankruptcy court served to improperly circumvent the Federal Rule of Bankruptcy Procedure because although he timely signed on to the timely Complaint that initiated this proceeding, he did not have authority from the State Court to file the action until well past the bankruptcy deadline for doing so. The Court agrees with Plaintiffs that the argument is inartfully couched within the Rule 41 argument.
"Nunc pro tunc signifies now for then, or in other words, a thing is done now, which shall have the same legal force and effect as if done at [the] time when it ought to have been done." United States v. Allen, 153 F.3d 1037, 1044 (9th Cir.1998) (quoting Black's Law Dictionary 964 (5th ed.1979)). The doctrine is considered part of the "inherent power of the court to make its records speak the truth." Id.
Defendant does not dispute that original Complaint was timely filed and that the Receiver signed on to that Complaint. Instead, Defendant argues that because the
2:00 PM
Defendant did not have authority to file the initial Complaint under state law, at the time of the filing, that his participation in this case going forward cannot be cured by the State Court’s retroactive grant of authority. On this point, the Court agrees with the cases cited by Plaintiffs that the failure to obtain authority to sue is not a jurisdictional bar to filing. The In re Richards case cited by Defendant is unavailing on this point because it involves a bankruptcy local rule which the plaintiff had not complied with when the complaint was filed. 2 B.R. 219, 22 CBC 501 (BC MD NC 1980). In contrast, the Receiver’s authority to sue in this case involves state law and a nunc pro tunc order issued by the State Court. The Defendant now asks this Court to invalidate that order. However, if the Defendant disagreed with the State Court’s authority to issue nunc pro tunc relief, his recourse should have been to appeal or seek reconsideration of the State Court’s order. The legal argument that the Receiver’s action is untimely is not well-taken and the Defendant has not provided legal authority to support the proposition that this Court may now invalidate the State Court’s Nunc Pro Tunc Order.
Finally, the Defendant’s arguments regarding the Receiver’s fees and expenses are incognizable. As such the Court need not reach this argument at this time. To the extent relief is requested as to the Defendant’s liability for Receiver’s fees and expenses, such relief is denied without prejudice.
For the foregoing reasons, including for the reasons set forth by Plaintiffs’ and Trustee’s Opposition not here addressed, the Court is inclined to DENY the Motion in its entirety.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Movant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17, 2/14/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Summer M Shaw George Hanover
LIBERTY ORTHOPEDIC Represented By Summer M Shaw
2:00 PM
George Hanover
UNIVERSAL ORTHOPAEDIC Represented By Summer M Shaw George Hanover
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01309 Cisneros v. DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN
A. Cisneros against DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential Transfer (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
DOUGLAS J. ROGER, M.D., INC. Represented By
Summer M Shaw
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01308 Cisneros v. BWI CONSULTING, LLC et al
A. Cisneros against BWI CONSULTING, LLC, Black and White, Inc., BLACK AND WHITE BILLING COMPANY, BLACK AND WHITE INK, MEHRAN DEVELOPMENT CORPORATION. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 1/13/16, 3/23/16, 5/25/16, 7/27/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
MEHRAN DEVELOPMENT Pro Se
2:00 PM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18 Also #26 & #27 EH
Docket 42
On April 12, 2016, Jose Hernandez ("Debtor") filed a Chapter 7 voluntary petition. On July 7, 2016, the Chapter 7 Trustee ("Plaintiff") filed a complaint against Carolina Navarro ("Defendant") seeking the avoidance and recovery of a fraudulent transfer.
After default was entered against Defendant, on October 14, 2016, the parties stipulated to set aside default, and, that same day, Defendant filed her answer. On March 1, 2018, Plaintiff filed a motion for summary judgment. On April 4, 2018, Defendant filed her opposition.
Plaintiff alleges that on July 21, 2014, Debtor transferred certain real property located at 3510 Duffy St., San Bernardino, CA 92407 to Defendant for no consideration and that Debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer. Defendant received a Chapter 7 discharge on January 26, 2018.
2:00 PM
Violation of Discharge Injunction
As a preliminary matter, Defendant argues that because she obtained her own discharge in January, the continuation of this proceeding violates her discharge injunction. Specifically, Defendant argues that her discharge extinguishes her personal liability and that Trustee’s complaint seeks avoidance of the transfer and recovery of the property or its value. Defendant’s opposition states:
Notwithstanding his heightened knowledge of the provisions of the Bankruptcy Code and bankruptcy jurisprudence, the Trustee has pursued the same claims and remedies against Defendant after her discharge was granted, relieving her of any personal liability on account of the Trustee’s alleged claims and barring the Trustee from obtaining relief in this case. For example, the Trustee seeks judgment on his Fifth Claim, which as pled in the Complaint, alleges that "Plaintiff is entitled to recovery the Subject Property or its value from the Defendant Pursuant to § 550(a)."
[Dkt. No. 46, pg. 12-13].
Defendant’s argument is misleading and lacks merit. Regardless of the relief requested in the complaint, which was filed before Defendant obtained a discharge, Plaintiff’s motion for summary judgment has dropped the reference to "or its value" and only seeks recovery of the subject property. Nothing in the motion for summary judgment seeks to enforce a personal liability of the Defendant. Therefore, the Court rejects Defendant’s argument.
Motion for Summary Judgment
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. Rule 56(c) (incorporated by FED. R.
2:00 PM
BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324; see also FED. R. CIV. P. Rule 56(e). The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff requests summary judgment on the second claim for relief (avoidance of constructively fraudulent transfer) and the fifth claim for relief (recovery of avoided transfer). 11 U.S.C. § 548(a)(1)(B) states, in pertinent part:
(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily --
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such
2:00 PM
transfer or obligation
Defendant does not dispute that there was a transfer of an interest of property within 2 years before the petition date. Defendant does, however, dispute the satisfaction of the other two elements, arguing that Defendant received reasonably equivalent value and was not rendered insolvent by the subject transfer. See generally In re Fruehauf Trailer Corp., 444 F.3d 203, 210 (3rd Cir. 2006); In re Southern Textile Knitters, 65 Fed. Appx. 426, 436 (4th Cir. 2003) (outlining elements of § 548(a)(1)(B) action).
Regarding the requirement that reasonably equivalent value have been provided, Plaintiff asserts that the grant deed reflects that the transfer was a "bonafide gift and the grantor received nothing in return." In her opposition, Defendant argues that the language of the grant deed is inaccurate, and that she offered value in a variety of ways. Specifically, Defendant contends that she was a co-signer for the refinancing and "also provided consideration by contributing her wages to pay for household expenses and by providing domestic labor including cooking, cleaning, child-rearing, and running the parties’ household." [Dkt. No. 46, pg. 17, lines 7-9]. With regard to the language on the grant deed, Defendant states that:
The Grant Deed was not prepared by Debtor or Defendant. Debtor and Defendant correctly advised the loan officer who handled the refinancing that Defendant was not paying cash to Debtor for her one-half interest. For this reason, Debtor and Defendant believe the loan officer or escrow agent who prepared the Grant Deed noted on the document that the Transfer was a gift.
[Dkt. No. 46, pg. 5, lines 1-5].
In the reply, Plaintiff contends that "[a]fter first stating that it was a gift and nothing was received, the Debtor and Defendant should be estopped from now claiming it was not a gift and reasonably equivalent value was provided for the Subject Transfer." [Dkt. No. 51, pg. 4, lines 13-15].
The Court concludes that the parol evidence rule applies here to preclude the consideration of evidence which contradicts the plain and unambiguous language of the deed. See generally In re Khalil, 2014 WL 1725811 at *6-11 (Bankr. C.D. Cal. 2014) (collecting cases providing comprehensive analysis of the parol evidence rule in the context of grant deeds deed). As was noted in Khalil:
If there is no ambiguity on the face of the document, and no reference to
2:00 PM
information or terms in the recorded document or from the circumstances of
the conveyance that would lead a bona fide purchaser to inquire as to the intent and meaning of the instrument, then the bona fide purchaser is entitled to rely on the written record and is not charged with or bound by unstated meanings or by secret or collateral agreements that add to or alter the written record.
Id. at *10. While the above quotation is in the context of ownership interests in real property, rather than the nature of consideration, or lack thereof, in connection with a grant deed, the same underlying principle is applicable: "third parties, including the trustee and the estate’s creditors, must be able to rely on the terms of recorded deed." Id. at *11. See also id. at *10 ("As a general rule, when any ambiguity is not evident from the face of the instrument (i.e., a "latent" ambiguity), the deed must be construed solely from an analysis of the plain meaning of the document itself, and extrinsic evidence is not admissible."); Laux v. Freed, 53 Cal. 2d. 512, 523 (Cal. 1960) ("[I]f the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms.").
Regarding the insolvency requirement, Plaintiff first argues that given the absence of reasonably equivalent value, Debtor’s insolvency as a result of the transfer should be assumed; Plaintiff cites United States v. Mazzeo, 245 B.R. 435, 441 (E.D.N.Y. 1999). The Court declines to make such a presumption. The case cited by Plaintiff, and the related case law, deals with fraudulent transfer provisions under New York state law. See, e.g., Kim v. Ji Sung Yoo, 2017 WL 4382078 (S.D.N.Y. 2017) (noting presumption and collecting cases). No such burden shifting framework, however, exists under the Bankruptcy Code. See 5 COLLIER’S ON BANKRUPTCY ¶ 548.11[2] (16th ed. 2017) ("Under state law and the UFTA (and presumably the UVTA), a well- recognized exception permits the court to infer a proscribed financial state once the plaintiff has shown a lack of fair consideration or a lack of reasonably equivalent value. This shift should not apply to cases brought under section 548.") (footnotes omitted); see also In re Galbreath, 286 B.R. 185, 197 (Bankr. S.D. Ga. 2002) ("The burden for proving constructive fraud falls on the trustee who must show by a preponderance of the evidence that all requirements set out in § 548(a)(1)(B) have been met.")
Plaintiff next argues that Debtor’s insolvency can be established through a review of the schedules. Essentially, Plaintiff argues that the schedules indicate that Debtor was insolvent as of the petition date, and that the Court can work backwards to conclude that Debtor was insolvent on the date of the transfer. As one bankruptcy court has stated:
2:00 PM
Since insolvency at a given point in time is often difficult to demonstrate by direct proof, courts permit the trustee to show that the debtor was insolvent at one point in time and then prove that the same condition existed at the time of the subject transfer. This method of proof has been labeled "retrojection," but
it applies equally to situations in which the trustee starts at a point in time prior to the transfer. When the trustee chooses to use this method of proof it is essential that the trustee be able to show the absence of any substantial or radical changes in the assets or liabilities of the bankruptcy between the retrojection dates.
In re R. Purbeck & Assocs., Ltd., 27 B.R. 953, 955 (Bankr. D. Conn. 1983) (footnotes and quotation omitted). Plaintiff argues that the schedules reflect that Debtor had no meaningful unexempt assets as of the petition date while much of Debtor’s unsecured debt was identified as having been incurred prior to the date of the transfer.
Furthermore, Debtor’s statement of financial affairs does not disclose any significant transfers of property between the date of the subject transfer and the petition date.
In Defendant’s opposition, she appears to contend that Debtor’s outstanding debt on the date of the subject transfer was $210,282 and that Debtor’s assets were valued at approximately $224,000. The Court notes that these assertions do not demonstrate solvency – they demonstrate insolvency as that term is defined in the Code. 11 U.S.C.
§ 101(32)(A)(ii) exempts from the solvency requirement property which may be exempt under § 522. The assets listed in Debtor’s schedules, and in Defendant’s opposition, all appear to be assets capable of being exempted under § 522, thereby rendering Defendant statutorily insolvent. Even ignoring that fact, however, Defendant’s opposition indicates that Debtor had $53,186 in equity in the property; transferring a 50% interest in the property would have rendered Debtor insolvent even before removing property which can be exempted. As a result, the Court concludes that Plaintiff has demonstrated there is no genuine dispute regarding Debtor’s insolvency on the date of the subject transfer.
Recovery
Plaintiff also seeks recovery of the subject property pursuant to 11 U.S.C. § 550. 11
U.S.C. § 550(a)(1) states:
(a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title,
2:00 PM
the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from –
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made
Defendant opposes the requested recovery, although the legal basis for the opposition is less than clear. Defendant argues that "annulment of the Transfer would have the effect of returning the Property to a single ownership since Debtor was the sole owner. Therefore, recovery of the Transfer is unnecessary and provides no benefit to the estate." [Dkt. No. 46, pg. 18, lines 15-17]. The Court’s interpretation of the Plaintiff’s request is that Plaintiff is requesting an order indicating that the Property has retained to single ownership (the bankruptcy estate). Therefore, it does not appear there is really any legal dispute here, semantical differences aside.
Withdrawal of Admissions
In light of the foregoing, the Court is inclined to deny Defendant’s motion to withdraw admissions as moot. The Court need not rely on admissions by default in resolving the instant motion for summary judgment.
The Court is inclined to GRANT the motion for summary judgment, avoiding the transfer as constructively fraudulent and permitting Trustee’s recovery of such transfer. Defendant’s motion to withdrawn admissions is DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
2:00 PM
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Larry D Simons Represented By Frank X Ruggier
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18 Also #25 & #27 EH
Docket 49
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By
2:00 PM
Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 9/7/16, 11/9/16, 1/11/17, 3/8/17, 4/12/17, 5/17/17, 6/7/17, 7/26/17, 9/27/17, 11/29/17, 1/10/18, 4/25/18
Also #25 & #26 EH
Docket 1
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
9:30 AM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
FROM: 3/12/18
Also #2 EH
Docket 1
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Stephen Collias Represented By Cara J Hagan
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
American Business Investments Represented By
9:30 AM
Lawrence J Kuhlman Autumn D Spaeth ESQ
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop
Trustee(s):
Arturo Cisneros (TR) Pro Se
9:30 AM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
HOLDING DATE
From: 3/11/15, 5/20/15, 7/29/15, 12/16/15, 2/3/16, 3/16/16, 5/11/16, 8/31/16, 11/2/16, 11/16/16, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 3/12/18
Also #1 EH
Docket 1
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Stephen Collias Represented By Cara J Hagan
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
9:30 AM
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop
Trustee(s):
Arturo Cisneros (TR) Pro Se
9:30 AM
Adv#: 6:15-01206 Speier v. Simmons et al
EH
Docket 1
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
Angela Simmons Represented By David Brian Lally
David Schanhals Represented By David Brian Lally
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
9:30 AM
Adv#: 6:15-01206 Speier v. Simmons et al
From: 5/22/18 EH
Docket 1
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
Angela Simmons Represented By David Brian Lally
David Schanhals Represented By David Brian Lally
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
9:30 AM
Elizabeth A LaRocque
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lynette Kathryn Beaver Represented By Anerio V Altman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/26/18 EH
Docket 17
Summary of the Motion:
TENTATIVE
The electronically filed Motion contains a proof of service ("POS") with blank dates and no service information. The POS is insufficient to establish proper service as filed. Based on the foregoing, the Court is inclined to CONTINUE the hearing to May 24, 2018, at 11:00 a.m. for Movant to file and serve notice of the continued hearing pursuant to FRBP 7004.
On correcting the service issue as indicated, the Court is inclined to GRANT the Motion.
APPEARANCES WAIVED.
11:00 AM
Debtor(s):
Michael A Losoya Represented By Julie J Villalobos
Joint Debtor(s):
Patricia O Losoya Represented By Julie J Villalobos
Movant(s):
Michael A Losoya Represented By Julie J Villalobos
Patricia O Losoya Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 16
- NONE LISTED -
Debtor(s):
Don Gurule Represented By
Christopher Hewitt
Joint Debtor(s):
Elaine Gurule Represented By Christopher Hewitt
Movant(s):
Don Gurule Represented By
Christopher Hewitt
Elaine Gurule Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 0
- NONE LISTED -
Debtor(s):
Don Gurule Represented By
Christopher Hewitt
Joint Debtor(s):
Elaine Gurule Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kyle Stephens Represented By Mona V Patel
Joint Debtor(s):
Diandra Stephens Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Victorio Roman Manabat Represented By John A Varley
Joint Debtor(s):
Sheila Rosales Manabat Represented By John A Varley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ardreda Lynn Johnson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marilyn N Koehnlein Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Matthew Glenn Martin Represented By Todd L Turoci
Joint Debtor(s):
Melody Dawn Martin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James David Wilson IV Represented By Dina Farhat
Joint Debtor(s):
Kerri Ann Wilson Represented By Dina Farhat
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Oswaldo H Perez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Keely J Barrett Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pedro Norlito Ibanez Represented By Alon Darvish
Joint Debtor(s):
Celia Singca Ibanez Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brian Howell Represented By
Julie J Villalobos
Joint Debtor(s):
Faythe Howell Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 30
Summary of the Motion:
TENTATIVE
Based on the Debtor’s evidence of the value of the Property, of the priority of the liens encumbering the Property, and proof that the Motion was properly served, which supports the Debtor’s request to avoid the junior lien on the Property, the Court is inclined to GRANT upon receipt of a chapter 13 discharge.
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued to the next Chapter 13 calendar.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER WITHIN 7 DAYS, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE FORMS SECTION ON THE COURT’S WEBSITE.
11:00 AM
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Movant(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Movant(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #19 & #20 EH
Docket 0
- NONE LISTED -
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marta Samhouri Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Movant(s):
Jose Velasco Represented By
Daniel King
Lilian Micaela Velasco Represented By Daniel King Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #23 EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steven Michel McCann Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kevin E Horton Represented By Todd L Turoci
Joint Debtor(s):
Manuel F. Dela Rosa Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marc Burns Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 15
On March 27, 2018, Ignacio and Cynthia Aguilar (collectively, "Debtors") filed their petition for chapter 13 relief. Among the assets of the estate is a 2014 Nissan Sentra (the "Sentra"). On April 30, 2018, the Debtors filed their Motion to Value the Sentra ("Motion"). On May 8, 2018, Capital One Auto Finance ("Capital One") filed its opposition to the Motion ("Opposition"). No reply has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the Sentra’s value, and thus its secured portion, should be determined to be $5,800, with an unsecured deficiency claim for $5,308. The Debtors’ valuation is based on a KBB value trade-in report. The Debtors have also provided evidence of estimates obtained to repair damage and normal wear and tear on the Sentra. (Ex.’s 3 & 4). Capital One has responded that the value of the Sentra should be no less than $9,975. In support, Capital One has provided evidence that the NADA Guide provides $9,975 as the retail value for the Sentra. To the extent there is a dispute about the valuation, Capital One requests a continuance for an appraisal. The Court is inclined to grant a short continuance for Capital One to have an appraiser
11:00 AM
evaluate the Sentra’s condition.
APPEARANCES REQUIRED.
Debtor(s):
Ignacio Salvador Aguilar Represented By Jenny L Doling
Joint Debtor(s):
Cynthia Araujo Aguilar Represented By Jenny L Doling
Movant(s):
Ignacio Salvador Aguilar Represented By Jenny L Doling Jenny L Doling
Cynthia Araujo Aguilar Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Movant(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 113
- NONE LISTED -
Debtor(s):
Bryan K. Harrison Represented By April E Roberts
Joint Debtor(s):
Dawn Harrison Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
- NONE LISTED -
Debtor(s):
Leslie A. Larson Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 175
- NONE LISTED -
Debtor(s):
Jose Ceja Jr Represented By
Dana Travis
Joint Debtor(s):
Chasity Ann Ceja Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 75
- NONE LISTED -
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 66
- NONE LISTED -
Debtor(s):
Sherry Ann Beardsley Represented By Jeffrey D Larkin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 96
- NONE LISTED -
Debtor(s):
Tanyua A Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 67
- NONE LISTED -
Debtor(s):
Joseph John Vargas Represented By Dana Travis
Joint Debtor(s):
Lydia Vargas Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- NONE LISTED -
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Ronald A Waters Represented By Paul Y Lee
Joint Debtor(s):
Trisha Waters Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Ryan Christopher Murphy Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Theresa Marie Murphy Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Renard Louis Hamilton Represented By
D Justin Harelik
Joint Debtor(s):
Regina Elizabeth Hamilton Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
William Martin Farber Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Elizabeth Jucaban Tuason Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
David Kevin Davidson Represented By Michael E Clark
Joint Debtor(s):
Lisa Marie Davidson Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 23
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CITIBANK, N.A.
EH
Docket 43
05/29/2018
Service: Proper Opposition: Yes
The Opposition provides evidence that sufficient payments to cure the delinquency were made prior to the hearing. However, Debtors do not dispute that they were delinquent in making payments. Parties to discuss entry of a stay current APO.
APPEARANCES REQUIRED.
Debtor(s):
Jesus Anthony Hernandez Represented By Erik Clark Michael E Clark
Joint Debtor(s):
Lenore Esther Hernandez Represented By Michael E Clark
Movant(s):
Citibank, N.A. Represented By Christina J O
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 41
05/29/2018
Service: Proper Opposition: Yes
Parties to provide status of cure and settlement discussions. APPEARANCES REQUIRED.
Debtor(s):
Marianne Bowers Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
From: 4/24/18 EH
Docket 55
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
10:00 AM
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 5/1/18 EH
Docket 55
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Richard M. Orellano II Represented By Patricia M Ashcraft
Joint Debtor(s):
Tifany Orellano Represented By Patricia M Ashcraft
10:00 AM
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERIHOME MORTGAGE COMPANY LLC
EH
Docket 37
05/29/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 3 and 6. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Movant(s):
AmeriHome Mortgage Company, Represented By
Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 3/20/18, 4/24/18 EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 33
05/29/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT as to ¶3 of prayer for relief. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Gary Ramirez Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Christina Faith Ramirez Represented By
Ethan Kiwhan Chin
Movant(s):
Lakeview Loan Servicing, LLC Represented By Mark S Krause
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 4/24/18 EH
Docket 23
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Parties to update Court regarding APO discussions. Absent agreement, the Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT termination of the co-debtor stay. GRANT waiver of 4001(a)(3) stay. GRANT authority to offer loan workout options.
APPEARANCES REQUIRED.
Debtor(s):
Noel Mallari Represented By
David L Nelson
Movant(s):
Freedom Mortgage Corporation Represented By John D Schlotter
Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 37
- NONE LISTED -
Debtor(s):
Evonne Marie Woodard Represented By Dana Travis
Movant(s):
Capital One Auto Finance, a Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 23
05/29/2018
Service is Proper Opposition: Yes
Standing
As a threshold matter, Debtor asserts that Movant has no standing. A party seeking relief from the stay "need only establish that it has a colorable claim to enforce a right against property of the estate." In re Pak, 2011 WL 7145763 (9th Cir.BAP (Cal.) 2011). A showing by a party that it is a person entitled to enforce the note at issue or that it holds some ownership or other interest in the note translates to a colorable claim. Id. Here, the Movant has provided evidence of a Trustee’s Deed Upon Sale in which it was conferred title to the Property at issue. For purposes of relief from stay, Movant has established it has a colorable claim sufficient to confer standing.
Relief from Stay
The Court takes judicial notice of its Order Granting Motion to Dismiss the Debtor’s Adversary Proceeding (Docket No. 29) in related Case No. 6:18-ap-01038- MH ("AP Order"). In that AP Order, the Court determined that pursuant to In re Perl, the foreclosure and issuance of a writ of possession against the Debtor by the California Superior Court extinguished all legal and equitable possessory interests in the real property at issue, including any that may have been held by the Debtor. Eden Place, LLC v. Sholem Perl (In re Perl), 811 F.3d 1120, 1128 (9th Cir.), cert. denied sub nom. Perl v. Eden Place, LLC, 137 S. Ct. 39, 196 L. Ed. 2d 27 (2016).
10:00 AM
The Court finds that the Opposition is not well-taken and is inclined to adopt its AP Order as a basis for granting of the Motion, in addition to the grounds set forth in the Motion itself. The Court is inclined to GRANT relief from stay, GRANT the request for an order confirming that there is no stay in effect, and GRANT waiver of the 14-day stay.
APPEARANCES REQUIRED.
Debtor(s):
Derick Jones Pro Se
Movant(s):
U.S. Bank National Association, on Represented By
Jamie D Hanawalt
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: EYDEE VELASCO MARTINEZ
EH
Docket 10
05/29/2018
Service was proper.
No opposition has been filed.
The Motion is GRANTED pursuant to § 362(d)(1) for Movant to pursue insurance only. Request for relief under ¶ 2 is also GRANTED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Tamoor Malik Ilyas Represented By
Raj T Wadhwani
Movant(s):
Eydee Velasco Martinez Represented By Demetrios Papanikolas
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATON
EH
Docket 18
05/29/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carmen Burgueno Represented By Curtis A Cavalletto
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: TATIANA NOEMI ALEGRE aka RICK ALEGRE
EH
Docket 21
05/29/2018
The Motion was not served on any creditors. As such the Motion must at the outset be denied for a failure to provide creditors with due process.
The Opposition argues that the Debtor has failed to demonstrate changed circumstances and that the Motion is untimely. As to the first argument, the Court concurs. The only "change in circumstances" indicated by the Debtor is that she has now hired counsel. However, there is no explanation of why counsel for the second and third case did not verify the petition was complete when the documents were filed.
As to the second grounds indicated by the Opposition, the Court does not read § 362(c) as requiring a motion to impose the stay to be heard within 30 days of the petition day, it must only be filed prior to the expiration of the 30-day period. Here, the Motion was timely.
The Reply does not cure the service issues and responds only by offering objecting creditor an APO.
APPEARANCES REQUIRED.
Debtor(s):
Tatiana Noemi Alegre Represented By
10:00 AM
Movant(s):
LeRoy Roberson
Tatiana Noemi Alegre Represented By LeRoy Roberson LeRoy Roberson
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 7
05/29/2015
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Veronica Santos Ortiz Pro Se
Joint Debtor(s):
Conrado Corona Gonzalez Pro Se
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: RIVERSIDE COUNTY TAX COLLECTOR
EH
Docket 16
- NONE LISTED -
Debtor(s):
Mark Irwin Barule Represented By Summer M Shaw Jenny L Doling
Movant(s):
Riverside County Treasurer-Tax Represented By Ronak N Patel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: 2ND CHANCE MORTGAGE INC
From: 5/15/18 EH
Docket 10
Tentative Ruling:
05/29/2017
Service is now proper.
No opposition has been filed.
GRANT as to § 362(d)(1) and § 362(d)(2). GRANT request to waive 14-day stay. APPEARANCES WAIVED. Movant to lodge order within 7 days.
Service is Proper Opposition: None
Pursuant to Local Rule 4001-1(c)(1)(C)(iv), service is required upon "the holder of a lien or encumbrance against the subject property that is known to the movant, scheduled by the debtor, or appears in the public record." Here, Movant is the junior lienholder on the subject property, yet has not served the senior lienholder with the instant motion. Therefore, the Court is inclined to CONTINUE the motion for service on the first mortgagee, Selection Portfolio Servicing, Inc.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Patrick Merrill Represented By Jeremiah D Raxter
Joint Debtor(s):
Gayle Merrill Represented By
Jeremiah D Raxter
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 74
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
11:00 AM
Docket 53
No opposition has been filed. Service was Okay
The applications for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 5,770.31 Trustee Expenses: $ 63.40
Tax Preparer Fee: $ 1,000.00
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
David B. Hertsgaard Represented By Timothy S Huyck
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Returned Mail: Not Deliverable as Addressed Re: Martin Rojas 3200 Guasti Rd Ste 100, Ontario CA 91760
EH
Docket 16
- NONE LISTED -
Debtor(s):
Audrey Beck Pro Se
Movant(s):
Audrey Beck Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:17-01121 Smedman et al v. STATE BOARD OF EQUALIZATION et al
From: 8/30/17, 9/27/17, 1/10/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Garrick Craig Smedman Represented By Neil C Evans
Defendant(s):
STATE BOARD OF Pro Se
California Department of Tax and Represented By
Matthew C. Heyn
Joint Debtor(s):
Veronica Lee Wilkins Represented By Neil C Evans
Plaintiff(s):
Craig Smedman Represented By Neil C Evans
Veronica Lee Wilkins Pro Se
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:16-01310 Swift Financial Corporation d.b.a. Swift Capital v. Castillo
EH
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Javier Castillo Represented By Joseph M Tosti
Defendant(s):
Francisco Javier Castillo Pro Se
Plaintiff(s):
Swift Financial Corporation d.b.a. Represented By
Lazaro E Fernandez
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:16-01310 Swift Financial Corporation d.b.a. Swift Capital v. Castillo
From: 5/3/17, 9/13/17, 11/8/17, 1/31/18, 3/28/18 Also #5
EH
Docket 1
- NONE LISTED -
Debtor(s):
Francisco Javier Castillo Represented By Joseph M Tosti
Defendant(s):
Francisco Javier Castillo Pro Se
Plaintiff(s):
Swift Financial Corporation d.b.a. Represented By
Lazaro E Fernandez
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
EH
Docket 46
On November 18, 2016, Javier & Carmen Lopez (collectively "Debtors"; individually, "Javier" and "Carmen") filed a Chapter 7 voluntary petition. On March 6, 2017, Amarillo College of Hairdressing ("Plaintiff") filed a non-dischargeability complaint against Javier pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). On July 12, 2017, the clerk entered default against Javier.
On October 17, 2017, Plaintiff filed a motion for leave to file an amended complaint to include Carmen as a defendant. On November 7, 2017, Debtors filed their opposition. On November 13, 2017, the Court granted the motion, and, on December 11, 2017, Plaintiff amended its complaint to include Carmen as a defendant. On February 26, 2018, the clerk entered default against Carmen.
On April 5, 2018, Plaintiff filed a motion for default judgment. According to Plaintiff, Javier, while employed as the Dean of Education at Plaintiff’s Palm Desert campus, received, through direct deposit, twice his agreed upon salary for a period of one year.
2:00 PM
Plaintiff asserts that the direct deposit authorization form contained a provision which granted Plaintiff the right to correct any erroneous overpayments of funds. After alerting Javier of the erroneous double payment, Javier refused to voluntarily reimburse Plaintiff for the overpayment. Plaintiff also asserts that Javier was aware of the erroneous double payment during the time when the double payments were made.
On January 2, 2014, Plaintiff filed a state court complaint against Javier for breach of contract, fraud, and conversion. On September 15, 2015, the state court granted Plaintiff’s motion for summary judgment as to all causes of action, and entered judgment in the amount of $49,603.08.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
2:00 PM
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Plaintiff served Debtors at the address listed on their bankruptcy schedules and served Debtor’s attorney via ECF. Therefore, service is proper.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes three causes of action, all related to non-dischargeability: (1) 11 U.S.C. § 523(a)(2)(A); (2) 11 U.S.C. § 523(a)(4); and (3) 11 U.S.C. § 523(a)
The above provisions read, in pertinent part:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
2:00 PM
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
The Court notes that it is, at best, unclear whether any of the three provisions are applicable to the facts here. For example, in In re Sterling, the bankruptcy court analyzed whether an employee’s retention of overtime pay at double the contractual rate satisfied the either 11 U.S.C. § 523(a)(2)(A) or 11 U.S.C. § 523(a)(6). 479 B.R. 444 (Bankr. E.D. Mich. 2012). Respecting 11 U.S.C. 523(a)(2)(A), the court first noted that the provision can apply to "misleading omissions" or "a scheme to deprive or cheat another of property or a legal right." Id. at 449. The bankruptcy court noted, however, that omission or silence only establishes the requisite intent if the debtor had an affirmative duty to disclose. Id. (applying Michigan law and the silent fraud doctrine). After noting that the plaintiff had not identified any contractual duty to disclose, the bankruptcy court noted that: "[a] duty to disclose may also arise in equity," but ultimately concluded the following:
The present case does not present any circumstances that would give rise to such an equitable duty. To the contrary, Plaintiff was in a position of control and had at least equal if not superior knowledge, gained from repeated, but unavailing attempts to correct the problem. Plaintiff, as Defendant’s employer, had access to the payroll information and, with the exercise of reasonable diligence, could have discovered the continuing overpayments at any time.
Id. at 450 (also questioning whether plaintiff’s reliance on defendant’s silence was justifiable because the information was in the control of plaintiff).
2:00 PM
Here, neither the complaint nor the motion for default judgment include any allegation that Javier affirmatively misled Plaintiff, nor do they contain any basis upon which the Court could conclude that Javier had a contractual or an equitable duty to disclose the overpayments to Plaintiff. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a) (2)(A).
11 U.S.C. § 523(a)(4) contains three different exceptions to dischargeability: (1) fraud or defalcation while acting in a fiduciary capacity; (2) larceny; and (3) embezzlement. Regarding fraud or defalcation while acting in a fiduciary capacity, the elements are:
(1) the existence of an express trust; (2) the debt was caused by fraud or defalcation; and (3) the debtor acted as a fiduciary to the creditor at the time the debt was created. See, e.g., In re Niles, 106 F.3d 1456, 1459 (9th Cir. 1997). Clearly Plaintiff has not satisfied the standard for fraud or defalcation while acting in a fiduciary capacity because, among other things, Javier was not acting in a fiduciary capacity as to his salary and his salary was certainly not the corpus express trust. See, e.g., Matter of Cantrell, 88 F.3d 344, 347 (5th Cir. 1996) ("The court also correctly opined that, in the absence of an express trust and a recognizable corpus, 11 U.S.C. § 523(a)(4) is inapplicable.").
Plaintiff also does not appear to have satisfied the standard for larceny or embezzlement. "Larceny is the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker’s use without the consent of the owner." 4 COLLIER’S ON BANKRUPTCY ¶ 523.10[2] (16th ed. 2009). Here, it appears doubtful that Javier could be considered to have "taken" the excess salary payments which Plaintiff caused to be directly deposited in Javier’s bank account. Embezzlement, on the other hand, contains three elements: "(1) property rightfully in the possession of a nonowner; (2) nonowner’s appropriation of the property to a use other than which it was entrusted; and (3) circumstances indicating fraud." In re Littleton, 942 F.2d 551, 555 (9th Cir. 1991). While there may be a colorable argument that embezzlement has occurred in this case, such an argument has not been detailed in the complaint or the motion for default judgment. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non- dischargeable pursuant to 11 U.S.C. § 523(a)(4).
2:00 PM
Regarding § 523(a)(6) the elements are: "(1) willful conduct, (2) malice, and (3) causation." See, e.g., In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995). Here, Plaintiff’s complaint simply recites the legal standard, notes that the state court awarded a judgment based, in part, on fraud, and Plaintiff’s motion for default judgment contains the material state court pleadings as an attachment. The Court deems the allegations in the complaint to be insufficient to establish non- dischargeability under § 523(a)(6). See In re Sterling, 479 B.R. 444, 452-455 (Bankr.
E.D. Mich. 2012) (detailing § 523(a)(6) analysis in context of retention of salary overpayment). Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
Finally, the Court notes that it appears Plaintiff has assumed that the use of issue preclusion is appropriate in this case, but has not briefed the issue.
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). Additionally, the application of issue preclusion requires a "mandatory ‘additional’
2:00 PM
inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted). The Court requires further briefing on the appropriateness of issue preclusion in this case, including legal arguments explaining how the applicable state court causes of action (presumably fraud by concealment) translate to the non-dischargeability standards.
The Court is inclined to CONTINUE the matter for further briefing.
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By
2:00 PM
Movant(s):
Christopher Hewitt
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17, 2/1/18, 2/8/18, 3/22/18
Also #7 EH
Docket 1
- NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
2:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
EH
Docket 27
On January 3, 2017, Richard Earl Davis Jr. ("Debtor") filed a Chapter 7 voluntary petition. On March 30, 2017, Angelo & Kandis Gumbs ("Plaintiffs") filed a non- dischargeability complaint against Debtor and his business entity.
On June 27, 2017, Plaintiffs filed a motion for default judgment, which was denied on October 4, 2017, for failure to serve the motion at the address Debtor listed on his bankruptcy petition.1 On December 7, 2017, Plaintiffs filed a second motion for default judgment. At a hearing on January 10, 2018, Debtor appeared and opposed the request. After the Court continued the matter, Debtor filed his answer later that same day. On January 30, 2018, the Court entered a scheduling order.
On May 9, 2018, Plaintiffs filed a motion to strike the answer of Debtor and for entry of default. The basis for Plaintiffs’ motion is that Debtor failed to attend the scheduled deposition and failed to respond to any of Plaintiffs’ discovery requests.
2:00 PM
FED. R. CIV. P. Rule 37(b)(2)(A), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7037, states:
If a party or a party’s officer, director, or managing agent – or a witness designated under Rule 30(b)(6) or 31(a)(4) – fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
directing that the matter embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
striking pleadings in whole or in part;
staying further proceedings until the order is obeyed;
dismissing the action or proceeding in whole or in part;
rendering a default judgment against the disobedient party;
treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Furthermore, FED. R. CIV. P. Rule 37(d)(3) permits the Court to order the above listed sanctions in response to a party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection.
2:00 PM
Here, Plaintiffs have adequately established that Debtor failed to attend his own deposition and has otherwise failed to cooperate in discovery in this matter. The Court also notes that Debtor only filed a late answer approximately ten months after the commencement of this proceeding, and after being served with a motion for default judgment, which Debtor did not oppose in writing.
Based on Debtor’s failure to cooperate in discovery, Debtor’s failure to attend his own deposition, Debtor’s late filing of his answer in the instant case, and Debtor’s lack of opposition to the instant motion, the Court is inclined to strike Debtor’s answer.
Regarding Plaintiffs’ request that the Court enter default against Debtor, the Court notes that the continued hearing for Plaintiffs’ motion for default judgment is in one week, and the Court will take up the issue at that time.
The Court is inclined to GRANT the motion to the extent of STRIKING Debtor’s Answer.
APPEARANCES REQUIRED.
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
2:00 PM
Movant(s):
Angelo M Gumbs Represented By Alexander B Boris
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris
Kandis Gumbs Represented By Alexander B Boris
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01205 PRINGLE v. Rizzo et al
FROM: 11/29/17, 3/28/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Scott Leigh Baumann Represented By Jenny L Doling
Defendant(s):
Michael R Rizzo Pro Se
Linda M Rizzo Pro Se
Joint Debtor(s):
Holly Lynn Baumann Represented By Jenny L Doling
Plaintiff(s):
JOHN P PRINGLE Represented By Carmela Pagay
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
EH
Docket 11
On October 30, 2017, Sara Durham ("Debtor") filed a Chapter 7 voluntary petition. On January 8, 2018, SCE Federal Credit Union ("Plaintiff") filed a non- dischargeability complaint against Debtor pursuant to 11 U.S.C. § 523(a)(1), (a)(2) (A), and (a)(14). On February 8, 2018, Debtor filed her answer. On March 27, 2018, the Court issued a scheduling order.
On May 2, 2018, Plaintiff filed a motion to compel Debtor to respond to document production requests and for monetary sanctions in the amount of $1,013.50. No opposition has been filed by Debtor.
FED. R. CIV. P. Rule 34, incorporated into bankruptcy proceedings by FED. R. BANKR. P.
Rule 7034, outlines the procedure for requesting document production and for
2:00 PM
responding to such requests. As outlined in Plaintiff’s motion, Debtor failed to respond to Plaintiff’s request for document production within the time frame specified by FED. R. CIV. P. Rule 34(b)(2)(A).
According to Plaintiff, FED. R. CIV. P. Rule 37(a)(2) provides the grounds for its request for an order compelling disclosure of discovery. The sentence quoted by Plaintiff, however, appears to be that contained in FED. R. CIV. P. Rule 37(a)(3)(A), which states: "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." FED. R. CIV. P. Rule 26(a), however, deals with disclosures that are required independent from discovery. It would appear that the appropriate legal basis for Plaintiff’s request to compel a discovery response is FED. R. CIV. P. Rule 37(a)(3)(B)(iv).
Given Debtor’s failure to timely respond to or object to Plaintiff’s request for document production, the Court is inclined to order Debtor to respond to such request within fourteen days of the entry of the order. Given that Debtor is pro se, however, given the absence of any previous delay in the proceedings, and given the fact that Plaintiff has failed to identify the appropriate legal basis for its request, the Court is not inclined to order monetary sanctions if Debtor responds to the request for document production within fourteen days.
The Court is inclined to GRANT the motion and order Debtor to respond to Plaintiff’s request for document production, and order sanctions in the amount of $1,013.50 payable only if Debtor fails to respond to the Plaintiff’s request for document production within fourteen days of the entry of the order.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Movant(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
EH
Docket 11
5/30/2018
Pursuant to the terms of the stipulation lodged on May 25, 2018 [Dkt. No. 20] the Court is inclined to take the matter off calendar if no party appears to dispute the authenticity of the stipulation.
APPEARANCES WAIVED. Counsel for Plaintiffs to lodge an order within seven days.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mike Bareh Represented By
Mirco J Haag
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01076 Kiefner v. Nieto
Docket 3
- NONE LISTED -
Debtor(s):
Andrew William Nieto Represented By Krystina T Tran
Defendant(s):
Andrew Nieto Represented By Krystina T Tran
Movant(s):
Andrew Nieto Represented By Krystina T Tran
Plaintiff(s):
Leslie Kiefner Represented By Brandon L Fieldsted
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
(Holding Date)
From: 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18, 1/31/18
Also #15 EH
Docket 62
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Movant(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
From: 5/14/14, 7/2/14, 12/10/14, 3/18/15, 4/22/15, 5/20/15, 7/22/15, 10/28/15, 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18,
1/31/18
Also #14 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 3/7/18, 5/9/18 Also #17
EH
Docket 68
PROCEDURAL BACKGROUND
On February 26, 2016, Sam & Greeta Dason (Sam, individually, "Dason") (collectively, "Debtors") filed a Chapter 7 voluntary petition. On August 22, 2016, Juddy Olivares & Eric Panitz (individually, "Olivares" and "Panitz") (collectively, "Plaintiffs") filed a complaint against Dason to determine dischargeability of debt (11
U.S.C. § 523(a)(6)) and for attorney’s fees. On September 20, 2016, the complaint was amended. On January 11, 2017, the Court dismissed Panitz from the complaint. On March 7, 2017, Olivares filed her second amended complaint.
On August 9, 2017, Dason filed an answer and a counter-claim1 against Olivares. On October 2, 2017, Olivares filed her answer to the counter-claim. On January 19, 2018, Olivares filed the instant motion for summary judgment. On February 13, 2018, Dason filed his opposition to the motion for summary judgment. On February 21, 2018, Olivares filed her reply.
The Court notes that Dason has conceded that his counter-claim is moot in light of this Court’s order annulling the automatic stay. As a result of this concession, it is the Court’s intention to dismiss the counter-claim in the absence of any objection from
2:00 PM
Dason.
FACTUAL BACKGROUND
Olivares began working as a dental assistant in 2010 for Colton Dental Group, the business name of Dason’s dental corporation, Sam Daniel Dason, DDS ("Dason DDS"). Olivares states that she "was subjected to offensive sexual comments and inquiries, and other unwelcome, sexually-based, offensive conduct by Defendant." Furthermore, Olivares states that she "was subjected to repeated unwelcome sexual touching at the hands of Defendant," which is extensively detailed in the complaint and the motion for summary judgment. On January 17, 2013, Olivares left early and did not return to work. On February 26, 2016, the San Bernardino County Superior Court entered a judgment against Dason and Dason DDS in the amount of
$1,724,996.34 (the "Judgment").2 The judgment contained the following components:
$300,000 for past emotional distress – hostile work environment
$200,000 for past emotional distress – quid pro quo sexual harassment
$500,000 for future emotional distress
$100,000 for punitive damages3
$1,875 for future psychiatric care
$8,125 for future psychological care
$6,735.22 for past lost income
$608,261.12 for attorney’s fees and costs
Olivares contends that the judgment is non-dischargeable pursuant to 11 U.S.C.
§ 523(a)(6). Olivares bases her motion for summary judgment both on issue preclusion and the record in this case. Dason argues that the record in this case cannot support summary judgment and that the state court judgment does not contain adequate findings to support issue preclusion.
Olivares requests that the Court apply issue preclusion and find that the Judgment is non-dischargeable under 11 U.S.C. § 523(a)(6). The Bankruptcy Code excepts from discharge any debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). The creditor bears the burden of proving each element of § 523(a)(6) by a preponderance of the evidence.
2:00 PM
See, e.g., Grogan v. Garner, 498 U.S. 279, 287 (1991).
To prevail on a claim under § 523(a)(6), a creditor must demonstrate three elements:
willful conduct; (2) malice; and (3) causation. See In re Butcher, 200 B.R. 675, 680 (Bankr. C.D. Cal. 1996) (quoting In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995)). A willful injury is a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). "A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008) (quoting In re Jercich, 238 F.3d 1202, 1209 (9th Cir. 2001)).
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c) (incorporated by FED. R. BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff’s State Court Claim
2:00 PM
The legal provision under which the relevant portion of the Judgment was based is
CAL. GOV. CODE § 12940(j)(1), which states:
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
Olivares reference EEOC guidelines which create two categories of sexual harassment: (1) quid pro quo and (2) hostile environment. Olivares also points to case law which acknowledges the two categories. See, e.g., Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 516-517 (Cal. Ct. App. 1998) ("There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. The second, and the one at issue in this case, is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.") (citations and quotations omitted).
2:00 PM
The delineation of two separate categories of sexual harassment is relevant and important here. First, the Court notes that the Judgement references Olivares’s claim for "Hostile Work Environment and Quid Pro Quo Sexual Harssament," and the state court specifically identified separate damages for "past emotional distress hostile work environment" and "past emotional distress quid pro quo sexual harassment." [Dkt. No. 70 at pg. 8, lines 1-2]. Because these two categories of sexual harassment implicate different issues and require different findings to be made, issue preclusion may operate differently with respect to each issue.
Issue Preclusion on Plaintiff’s Claim under 11 U.S.C. § 523(a)(6)
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001).
Additionally, the application of issue preclusion requires a "mandatory ‘additional’ inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the
2:00 PM
doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted).
Here, the Court’s focus is on the second and third elements of the Harmon test because there is no dispute that the Judgement is final and on the merits, and that the parties are the same. Specifically, the Court is concerned with whether "willfulness" was actually litigated and necessarily decided in state court.4
For a default judgment to be "actually litigated," the material factual issues must have been both raised in the pleadings and necessary to uphold the default judgment.
Gottlieb v. Kest, 141 Cal. App. 4th 110, 149 (Cal. Ct. App. 2006). An express finding need not have occurred if the court in the prior proceeding necessarily decided the issue. Cantrell v. Cal–Micro, Inc. (In re Cantrell), 329 F.3d 1119, 1124 (9th Cir.2003).
Under California law, an issue is necessarily decided when (1) there are explicit findings of an issue made in a judgment or decision, or (2) or when the issue is a conclusion that must have been necessarily decided by the court. Samuels v. CMW Joint Venture (In re Samuels), 273 F. App'x 691, 693 (9th Cir. 2008).
Olivares argues that "[c]ourts analogize quid pro quo sexual harassment to ‘extortion,’ which is not only an intentional tort but is also a crime." [Dkt. No. 68, pg. 14, lines
24-26]. The Court finds the analogy to be apt. The injury sustained in a quid pro quo sexual harassment claim is a tangible, negative effect on employment terms. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982). The quid pro quo conditioning of these employment terms is, necessarily, an intentional action of the employer. As noted in section III, "willfulness" requires an intentional injury, not merely an intentional act. In the case of quid pro quo sexual harassment, the distinction is illusory – intentionally and negatively conditioning an individual’s employment terms with unwanted sexual advances is the equivalent of intentionally causing an injury. See, e.g., In re Roth, 2014 WL 684630 at *6 (Bankr. D. Colo. 2014)
2:00 PM
(applying issue preclusion to find quid pro quo sexual harassment to be willful, albeit in a non-default situation). Therefore, that part of the Judgment which deals with quid pro quo sexual harassment contains a finding of "willfulness."
The analysis regarding hostile workplace, however, is different. As noted by Olivares, the "hostile workplace" theory of sexual harassment generally requires unwanted sexual advances that have the "effect of unreasonably interfering with an individual’s work performance." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). In contrast to the quid pro quo liability, where the injury results from an employer’s intentional reaction or retaliation, the injury under a hostile workplace theory is subjective and dependent upon the employee’s perspective. An employer is certainly capable of unintentionally creating a hostile work environment.
The issue preclusion section of Olivares’s motion for summary judgment focuses on the quid pro quo theory of sexual harassment. The Court agrees with Olivares’s that "willfulness," as it is used in 11 U.S.C. § 523(a)(6), is implicit within a judgment for quid pro quo sexual harassment. But it is not necessarily implicit in a judgment under the "hostile workplace" theory of sexual harassment – the hostile workplace could be created negligently or unintentionally, based on incorrect assumptions of the employer.
Dason has not advanced any argument why the application of collateral estoppel to the facts of this specific case would not be "fair and consistent with sound public policy." Dason’s opposition concedes Dason was aware that a trial was scheduled and the date when the trial would occur. Yet, after three years of litigation, no appearance was made on behalf of Dason at the trial. Given the extensive litigation that occurred in state court and the fact that the non-appearance of Dason at trial was due to a conscious choice, and part of a deliberate litigation strategy, the Court concludes that application of issue preclusion would continue the preserve the integrity of the judicial system and promote judicial economy. Thus, partial application of issue preclusion would further the policy and interests underlying the doctrine. See, e.g., In re Baldwin, 249 F.3d 912, 919-920 (9th Cir. 2001) (describing policies underlining collateral estoppel).
2:00 PM
Absence of a Genuine Issue of Material Fact
Olivares alternatively argues that the record in this case is sufficient to warrant summary judgment independent of the state court judgment. The Court disagrees. The record in this case essentially consists of: (1) Olivares’s extensive and detailed description of the alleged sexual harassment; and (2) Dason’s denial of the allegations. After the partial application of issue preclusion noted above, the only remaining factual issue is whether the "willfulness" requirement of § 523(a)(6) is satisfied as to that part of the Judgment which arises from a hostile workplace theory of sexual harassment. Here, the Court is simply presented with competing declarations from Dason and Olivares which assert, respectively, that Dason did not intend to create a hostile workplace environment and that it can be inferred that Dason had such an intention. Apart from those declarations, the record contains two pages of a deposition of Cesar Espinoza stating that Olivares complained that Dason grabbed her posterior at some point in time. Given the paucity of the existing record and the unambiguously contradictory declarations of Dason and Olivares, the Court concludes that summary judgment is inapplicable on this record.
The Court is inclined to GRANT summary judgment as to the Judgment in so far as the Judgment relates to a quid pro quo theory of sexual harassment and DENY summary judgment in so far as the Judgment relates to a hostile workplace theory of sexual harassment for failure to satisfy the "willfulness" requirement of § 523(a)(6). The Court may order briefing regarding the apportionment of damages that are not specifically assigned to one category.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
Juddy Olivares Represented By Lazaro E Fernandez
Juddy Olivares Pro Se
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 1/24/18, 3/7/18,
5/9/18
Also #16 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe
2:00 PM
Trustee(s):
Charity J Manee
Lynda T. Bui (TR) Represented By Brett Ramsaur
10:00 AM
MOVANT: JOSE & LILIAN VELASCO
EH
Docket 9
The Court is inclined to DENY the motion. While Debtors have provided sufficient evidence to overcome the presumption of bad faith as to their most recent Chapter 13 case, Debtors have not provided clear and convincing evidence to overcome the presumption of bad faith as their second most recent Chapter 13 case, which was pending within the previous year. Furthermore, Wells Fargo Bank, N.A., the holder of the note secured by Debtors’ real property during the second most recent Chapter 13 case, had a relief from stay motion pending at the time of the case’s dismissal. The Court takes judicial notice of the contents of docket number 72 in case 6:12-bk- 35097-MH, which appears to state that Debtors were 29 months behind on their mortgage payments on October 5, 2017. 11 U.S.C. § 362(c)(3)(C)(ii) provides for a presumption of bad faith as to a creditor if a motion from relief from stay is granted or pending at dismissal in a case during the previous year. Here, Debtors’ unsupported statement that their income has increased is insufficient to overcome the presumption of bad faith as to the mortgagee of their real property.
APPEARANCES REQUIRED.
Debtor(s):
Jose Velasco Represented By
Daniel King
10:00 AM
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Movant(s):
Jose Velasco Represented By
Daniel King
Lilian Micaela Velasco Represented By Daniel King Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILLIAM MEINEKE AND KATHIE MEINEKE
EH
Docket 17
The Court is inclined to DENY the motion for improper services. The Court’s self- calendaring procedures require that motions to continue the automatic stay which are set on shortened notice be served on secured creditors pursuant to FRBP 7004. Here, it does not appear that Debtors have served the primary secured creditor, Dovenmuehle Mortgage, pursuant to FRBP 7004.
APPEARANCES REQUIRED.
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Movant(s):
William Meineke Represented By Todd B Becker Todd B Becker
Kathie Meineke Represented By
10:00 AM
Trustee(s):
Todd B Becker
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANDRA LORENA PARRA
EH
Docket 16
The Court, having considered the motion and the evidence contained therein and finding such to be sufficient to overcome the presumption of bad faith arising under 11 U.S.C. § 362(c)(3), is inclined to GRANT the motion, IMPOSING the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Sandra Lorena Parra Represented By Christopher J Langley
Movant(s):
Sandra Lorena Parra Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: RUBY LEE FRAZIER
EH
Docket 8
The Court, having considered the motion and the evidence contained therein and finding such to be sufficient to overcome the presumption of bad faith arising under 11 U.S.C. § 362(c)(3), is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Ruby Lee Frazier Represented By Michael R Totaro
Movant(s):
Ruby Lee Frazier Represented By Michael R Totaro
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ABBEYFIELD PROPERTIES LP
EH
Docket 22
Service is Proper Opposition: None
Pursuant to the operation of 11 U.S.C. § 362(c)(3)(A), and in accordance with this Court’s order entered on May 21, 2018, the automatic stay as to Movant expired on May 17, 2018, and, therefore, Movant’s requests for relief is DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Alexander Tofick David Represented By Brad Weil
Movant(s):
ABBYFIELD PROPERTIES, LP Represented By
Helen G Long
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: RIVERSIDE COUNTY TAX COLLECTOR
From: 5/29/18 EH
Docket 16
Service is Proper Opposition: Yes
The Court is inclined to DENY the motion. Movant’s only asserted basis for relief from the automatic stay is the allegation that this present case was filed in bad faith. Movant identifies two reasons why this case was filed in bad faith: (1) Debtor listed few creditors in the case commencement documents; and (2) Debtor has filed multiple bankruptcies. Regarding the latter argument, Debtor has only onw previous filing, a successful Chapter 13 case. A single previous, successful Chapter 13 case does not suggest a bad faith filing; on the contrary, the Court considers it to be evidence against the assertion that this is a bad faith filing. Additionally, the fact that Debtor does not appear to have a significant amount of creditors does not, of itself, suggest that the instant case was filed in bad faith, especially when Debtor has complied with all statutory duties and has past experience of successfully maintaining a Chapter 13 case.
APPEARANCES REQUIRED.
Debtor(s):
Mark Irwin Barule Represented By
10:00 AM
Movant(s):
Summer M Shaw Jenny L Doling
Riverside County Treasurer-Tax Represented By
Ronak N Patel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii) 17253 Emerson Street, Victorville, CA 92394
MOVANT: FRPA TRUST
EH
Docket 17
Service is Proper Opposition: Yes
Pursuant to 11 U.S.C. § 362(c)(4), the automatic stay does not go into effect in a filed case if a debtor has two or more cases pending within the previous year. Here, Debtor had two Chapter 13 cases dismissed in the previous year for failure to file information. As a result, the automatic stay did not go into effect in the instant case.
Pursuant to 11 U.S.C. § 362(j), Movant is entitled to request an order confirming that no automatic stay went into effect in the instant case. Therefore, the Court will GRANT the motion, confirming that no automatic stay went into effect in the instant case. The Court notes that the assertions contained in Debtor’s opposition are entirely irrelevant to the request at issue.
The Court notes, however, that Debtor filed a motion to impose the automatic stay, which was continued until July 10, 2018. Movant should be aware that the comfort order to be issued by this Court does not preclude Debtor from later arguing that the automatic stay should or can be imposed in this case.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson
Movant(s):
FRPA TRUST, its successors and/or Represented By
Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
From: 5/8/18 EH
Docket 14
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001 (a)(3) stay. GRANT requests under ¶¶ 3 and 12 of the prayer for relief.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jose Luis Rodriguez Pro Se
Movant(s):
The Bank of New York Mellon, as Represented By
Nancy L Lee
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 15
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Hyon C. Kwon Represented By Stephen S Smyth
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: PNC BANK, NATIONAL ASSOCIATION
From: 5/8/18 EH
Docket 33
05/08/2018
Service: Proper Opposition: Yes
Debtor asserts he has made the necessary payments through the chapter 13 trustee’s office. The order confirming chapter 13 plan explicitly provides for conduit payments and the Debtor has provided evidence that a cashier’s check was made out to the chapter 13 trustee on April 16, 2018. Based on the Debtor’s evidence, the Court is inclined to DENY the Motion.
However, the Court notes that the Case Number indicated on the Cashier’s Check indicates Case No. 18-10357-WJ, where that number should end in "MH."
APPEARANCES REQUIRED.
Debtor(s):
Isaias Solano Represented By
Edward T Weber
10:00 AM
Movant(s):
PNC Bank, National Association Represented By
Armin M Kolenovic Jamie D Hanawalt
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
From: 4/24/18 EH
Docket 35
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
Debtor is three payments behind. Absent APO agreement, Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT termination of the co-debtor stay. GRANT waiver of 4001(a)(3) stay. GRANT as to authority to offer loan workout options.
APPEARANCES REQUIRED.
Debtor(s):
Anthony J McPike Represented By Dana Travis
Movant(s):
The Bank of New York Mellon, et al Represented By
Bonni S Mantovani
S Renee Sawyer Blume
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Kevin William Dixon Represented By Paul Y Lee
Joint Debtor(s):
Leticia Dixon Represented By Paul Y Lee
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
10:00 AM
Trustee(s):
Jennifer H Wang
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
From: 5/8/18 EH
Docket 53
05/08/2018
Service: Proper Opposition: Yes
Parties to update Court regarding status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
WELLS FARGO BANK, N.A. Represented By Jonetta A Graves Darshana Shah Armin M Kolenovic
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18, 3/6/18, 4/10/18, 5/8/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. NATIONAL ASSOCIATION
From: 5/8/18 EH
Docket 38
05/08/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Timothy A Kiley Represented By
M Wayne Tucker
Joint Debtor(s):
Ellen Eastwood Represented By
M Wayne Tucker
Movant(s):
U.S. Bank National Association, as Represented By
10:00 AM
Trustee(s):
Megan E Lees Armin M Kolenovic Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
EH
Docket 66
APPEARANCES REQUIRED.
Debtor(s):
Valicia LaShawn Fennell Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 5/1/18, 5/15/18 EH
Docket 41
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Cecilia Orozco Represented By Majid Safaie
Joint Debtor(s):
Sergio Orozco Represented By Majid Safaie
10:00 AM
Movant(s):
U.S. BANK NATIONAL Represented By Andrew Kussmaul Christina J O Jason A Cottrill
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FOREMAN FINANCIAL, INC.
EH
Docket 51
Service is Okay Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY request for relief from § 1301(a) stay as the motion was not served on any "co-debtor" as that termed is used in § 1301(a). DENY alternative request under ¶ 11 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jose R. Gonzalez Represented By Juanita V Miller
Joint Debtor(s):
Maria S. Gonzalez Represented By Juanita V Miller
Movant(s):
Foreman Financial, Inc. Represented By
10:00 AM
Trustee(s):
Jonathan David Leventhal
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 4/24/18 EH
Docket 41
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
On March 29, 2018, Debtor filed a Motion for Authority to Sell the Property. Debtor has indicated that he intends to pay off the Movant and remainder of the chapter 13 plan through escrow. The Trustee has recommended approval of the sale. The Court is inclined to CONTINUE the matter for 30 days for Debtor to finalize sale.
APPEARANCES REQUIRED.
Debtor(s):
Delkys Hyde Represented By
David L Nelson
Movant(s):
Bank of America, N.A. Represented By Bonni S Mantovani
S Renee Sawyer Blume Alexander G Meissner
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
From: 5/1/18 EH
Docket 49
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Andrea Sindy Pozgaj Represented By Joel M Feinstein
Movant(s):
Wilmington Savings Fund Society, Represented By
Darlene C Vigil Melissa A Vermillion
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JERRY WANG AS RECEIVER
EH
Docket 468
On October 24, 2013, Baleine, LP ("Debtor") filed a Chapter 7 voluntary petition. Prior to the bankruptcy filing, on March 18, 2013, the state court had appointed Jerry Wang ("Wang") as receiver of the personal property assets of Debtor, as well as the personal property assets of Douglas Roger ("Roger") and Roger’s medical corporation ("Roger Inc."). Wang now asserts that "nothing remains for [Wang] to do in terms of administering the receivership." [Dkt. No. 469, pg. 4, lines 8-9]. Wang has filed this instant motion for relief from the automatic stay in order to wind down the receivership. Both Trustee and Debtor have filed limited oppositions to the request.
Trustee requests that
to the extent Movant intends to seek to be paid an administrative expense claim in the Debtor’s case based on any services performed in the state court action, any orders/judgments obtained from the state court concerning Movant’s fees, expenses, and costs would not excuse Movant from compliance with 11 U.S.C. § 503, such that Movant’s fees, expenses, and costs would still be subject to approval of the Bankruptcy Court.
[Dkt. No. 472, pg. 2, lines 9-13]. Wang’s reply indicates that he accepts the condition requested by Trustee, and, therefore, the Court considers the limited objection of
10:00 AM
Trustee to be resolved.
Debtor’s limited opposition, however, remains unresolved. Debtor’s opposition states that Debtor
only opposes relief from stay for Movant to have the State Court determine post-petition fees, costs and any applicable interest, if any, on its claim, as this Court is better situated to make this determination, both because it is intimately familiar with the post-petition actions taken by Movant in the related bankruptcy cases all before this Court, as well as the fact that application of bankruptcy law is needed to make these post-petition determinations and allocations between the related debtors.
[Dkt. No. 474, section 3b(11)].
The Court notes that the district court has previous weighed in on similar issues in Roger’s bankruptcy. See In re Roger, 539 B.R. 837 (C.D. Cal. 2015); In re Roger, 2015 WL 7566647 (C.D. Cal. 2015) (pending appeal). While the Court disagrees with the blanket assertion offered by Wang that "[t]he District Court held that issues relating to the receivership are complex areas of state law that the State Court should decide," [Dkt. No. 469, pg. 5, lines 4-6], the Court agrees with Wang that the district court’s rationale is relevant here. Specifically, Court respects the district court’s conclusion that "the State Court, which presided over years of litigation involving numerous discovery disputes and the incurrence of $1,000,000 in attorneys’ fees, is better suited to resolve the issues." 2015 WL 7566647 at *10.1 This conclusion is specifically relevant because the primary basis of the unresolved objection of Debtor is that this Court is more familiar with the applicable law and facts. In accordance with the district court’s opinion, the Court disagrees with Debtor’s conclusion.
Debtor has also raised concerns regarding appropriately allocation expenses between the bankruptcy estates of Baleine, Roger, and Roger Inc. This concern, however, does
10:00 AM
not appear to be of high significance at this point in time, since those concerns could be litigated in the context of either a claim objection or an application for administrative fees. As conceded by Wang, "cause exists to grant relief from stay for a state court to first determine the total amount of a creditor’s claim/debtor’s liability. The effect of that determination on a bankruptcy estate is an issue of bankruptcy law for the bankruptcy court to decide on a later date." [Dkt. No. 477, pg. 2, lines 22-25].
In accordance with the rationale set forth in in the district court opinions of In re Roger, 539 B.R. 837 (C.D. Cal. 2015) and In re Roger, 2015 WL 7566647 (C.D. Cal.
2015) and the reasons set forth in Wang’s moving papers, and noting that Wang has agreed to the condition requested by Trustee, and further noting that the argument of Debtor has either been rejected by the district court or can be determined by this Court at a later time and in a more appropriate setting, the Court is inclined to GRANT the motion, lifting the automatic stay for Wang to proceed to wind down the receivership in state court.
APPEARANCES REQUIRED.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Jerry Wang, Duly-Appointed State Represented By
Jeffrey K Garfinkle Anthony J Napolitano
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
10:00 AM
MOVANT: REVERE FINANCIAL CORPORATION
Also #23 EH
Docket 626
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
10:00 AM
MOVANT: JERRY WANG, AS RECEIVER
Also #22 EH
Docket 634
On October 20, 2013, Douglas J. Roger, MD, Inc. ("Debtor") filed a Chapter 7 voluntary petition. Prior to the bankruptcy filing, on March 18, 2013, the state court had appointed Jerry Wang ("Wang") as receiver of the personal property assets of Debtor, as well as the personal property assets of Douglas Roger ("Roger") and Baleine, LP ("Baleine"). Wang now asserts that "nothing remains for [Wang] to do in terms of administering the receivership." [Dkt. No. 469, pg. 4, lines 8-9]. Wang has filed this instant motion for relief from the automatic stay in order to wind down the receivership. Both Trustee and Debtor have filed limited oppositions to the request.
Trustee requests that
to the extent Movant intends to seek to be paid an administrative expense claim in the Debtor’s case based on any services performed in the state court action, any orders/judgments obtained from the state court concerning Movant’s fees, expenses, and costs would not excuse Movant from compliance with 11 U.S.C. § 503, such that Movant’s fees, expenses, and costs would still be subject to approval of the Bankruptcy Court.
10:00 AM
[Dkt. No. 472, pg. 2, lines 9-13]. Wang’s reply indicates that he accepts the condition requested by Trustee, and, therefore, the Court considers the limited objection of Trustee to be resolved.
Debtor’s limited opposition, however, remains unresolved. Debtor’s opposition states that Debtor
only opposes relief from stay for Movant to have the State Court determine post-petition fees, costs and any applicable interest, if any, on its claim, as this Court is better situated to make this determination, both because it is intimately familiar with the post-petition actions taken by Movant in the related bankruptcy cases all before this Court, as well as the fact that application of bankruptcy law is needed to make these post-petition determinations and allocations between the related debtors.
[Dkt. No. 474, section 3b(11)].
The Court notes that the district court has previous weighed in on similar issues in Roger’s bankruptcy. See In re Roger, 539 B.R. 837 (C.D. Cal. 2015); In re Roger, 2015 WL 7566647 (C.D. Cal. 2015) (pending appeal). While the Court disagrees with the blanket assertion offered by Wang that "[t]he District Court held that issues relating to the receivership are complex areas of state law that the State Court should decide," [Dkt. No. 469, pg. 5, lines 4-6], the Court agrees with Wang that the district court’s rationale is relevant here. Specifically, Court respects the district court’s conclusion that "the State Court, which presided over years of litigation involving numerous discovery disputes and the incurrence of $1,000,000 in attorneys’ fees, is better suited to resolve the issues." 2015 WL 7566647 at *10.1 This conclusion is specifically relevant because the primary basis of the unresolved objection of Debtor is that this Court is more familiar with the applicable law and facts. In accordance with the district court’s opinion, the Court disagrees with Debtor’s conclusion.
10:00 AM
Debtor has also raised concerns regarding appropriately allocation expenses between the bankruptcy estates of Debtor, Roger, and Baleine. This concern, however, does not appear to be of high significance at this point in time, since those concerns could be litigated in the context of either a claim objection or an application for administrative fees. As conceded by Wang, "cause exists to grant relief from stay for a state court to first determine the total amount of a creditor’s claim/debtor’s liability. The effect of that determination on a bankruptcy estate is an issue of bankruptcy law for the bankruptcy court to decide on a later date." [Dkt. No. 477, pg. 2, lines 22-25].
In accordance with the rationale set forth in in the district court opinions of In re Roger, 539 B.R. 837 (C.D. Cal. 2015) and In re Roger, 2015 WL 7566647 (C.D. Cal.
2015) and the reasons set forth in Wang’s moving papers, and noting that Wang has agreed to the condition requested by Trustee, and further noting that the argument of Debtor has either been rejected by the district court or can be determined by this Court at a later time and in a more appropriate setting, the Court is inclined to GRANT the motion, lifting the automatic stay for Wang to proceed to wind down the receivership in state court.
APPEARANCES REQUIRED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Jerry Wang, Duly-Appointed State Represented By
Jeffrey K Garfinkle Joseph M Welch Brian T Harvey
10:00 AM
Trustee(s):
Anthony J Napolitano
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18, 3/6/18, 4/10/18 EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Debbie Hernandez Rosemary Allen Jamie D Hanawalt
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
11:00 AM
Docket 40
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: 2ND CHANCE MORTGAGE INC
From: 5/15/18, 5/29/18 EH
Docket 10
Tentative Ruling:
05/29/2017
Service is now proper.
No opposition has been filed.
GRANT as to § 362(d)(1) and § 362(d)(2). GRANT request to waive 14-day stay. APPEARANCES WAIVED. Movant to lodge order within 7 days.
Service is Proper Opposition: None
Pursuant to Local Rule 4001-1(c)(1)(C)(iv), service is required upon "the holder of a lien or encumbrance against the subject property that is known to the movant, scheduled by the debtor, or appears in the public record." Here, Movant is the junior lienholder on the subject property, yet has not served the senior lienholder with the instant motion. Therefore, the Court is inclined to CONTINUE the motion for service on the first mortgagee, Selection Portfolio Servicing, Inc.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Patrick Merrill Represented By Jeremiah D Raxter
Joint Debtor(s):
Gayle Merrill Represented By
Jeremiah D Raxter
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
EH
Docket 284
BACKGROUND
On December 1, 2017, Auto Strap Transport, LLC ("Debtor") filed a Chapter 11 voluntary petition. Among the assets of Debtor’s Chapter 11 estate are 2 2015 Volvo trucks (VIN # 4V5RC9EHXFN186580 and #4V5RC9EH7FN186603) and 2 2015
Cottrell car hauler trailers (VIN # 5EOAA1447FG605301 and # 5EOAJ1446FG603801) (collectively, the "Collateral"). The Collateral is currently leased from Sterling National Bank ("SNB").
On May 14, 2018, SNB filed a motion to compel assumption or rejection of executory contract and for full lease payments prior to formal assumption or rejection; and for relief from stay in the event of rejection of contract. Debtor has not filed any opposition to SNB’s request.
DISCUSSION
2:00 PM
In a case under chapter 11, a debtor in possession may assume an unexpired lease of personal property at any time prior to confirmation of a plan. Zions Credit Corp. v. Rebel Rents, Inc., Perris Valley Rentals, Inc. (In re Rebel Rents, Inc., Perris Valley Rentals, Inc.) 291 B.R. 520, 529 (Bankr. C.D. Cal 2003) (citing 11 U.S.C. § 365(a) and (d)(2)). It is the policy of the Bankruptcy Code to provide the debtor with breathing space following the filing of the petition, continuing until the confirmation of a plan, in which to assume or reject an unexpired lease. See In re Enron Corp., 279
B.R. 695, 702 (Bankr. S.D.N.Y. 2002). The Court, however, on request of a party to a lease, may order the debtor in possession to determine within a specified period of time whether to assume or reject. 11 U.S.C. § 365(d)(2).
Here, the Debtor, though properly served with the motion, has failed to file opposition or response. Additionally, SNB has provided evidence that Debtor is in default on payments due and owing to SNB under the terms of the agreement. Based on the evidence that Debtor is not abiding by the terms of the agreement and based also on the Debtor’s failure to file any response to the motion, the Court finds that an order compelling immediate rejection of the agreement is warranted.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the motion deeming the agreement rejected as of the hearing date of June 6, 2018, based on Debtor’s failure to file opposition or response. Additionally, SNB’s motion sets forth sufficient cause for lifting of the automatic stay. The remaining requests for relief are DENIED as moot. SNB may pursue its state law remedies to seek turnover of the Collateral.
APPEARANCES REQUIRED.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Movant(s):
Sterling National Bank Represented By
Jennifer Witherell Crastz
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Alma Delia Saldana Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Sara Janine Pease Represented By Michael E Clark
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 35
On April 30, 2018, Itria Ventures, LLC ("Plaintiff") filed a Motion To Compel Defendants' Responses To Discovery and For Attorney Fees ("Motion"). The Motion indicates that Debtors were served with interrogatories, requests for documents and admissions ("Discovery Requests") to which the Defendants neither responded, nor requested an extension of time to respond.
Plaintiff then properly contacted counsel for the Defendants to meet and confer regarding the Discovery Requests prior to filing the Motion.
By the Motion, Plaintiff seeks an order compelling Defendants to respond to the Discovery Requests and awarding attorney fees and costs jointly and severally to be paid by Defendants and their counsel to the Chekian Law Office for preparation of the Motion in an amount of $1,012.
In response to the Motion, the Defendants concede that they did not respond to the Plaintiff’s Discovery Requests. The stated reason for the nonresponsiveness is due to communication issues arising from Defendants’ counsel having health issues as well as unspecified issues related to Defendants’ counsel’s mother. Curiously, the
11:00 AM
declaration attesting to these issues is signed by the Defendant instead of Defendants’ counsel (the party with personal knowledge of the problems).
Based on Defendants’ concession that the nonresponsiveness to the Discovery Requests was their fault, the vagueness around the basis for the nonresponsiveness, and the failure to address the request for fees by Plaintiff, the Court is inclined to order as follows:
That Attorneys’s fees be awarded to Plaintiff in the full amount of $1,012, jointly and severally to be paid by Defendants and/or Counsel for the Defendants;
That a deadline for responses to the Discovery Requests and/or objections thereto shall be set fourteen days from the date of entry of the order on this Motion; and
That failure to abide by the deadline may result in discovery sanctions, including but not limited to deeming the requests for admission as admitted.
APPEARANCES REQUIRED.
Debtor(s):
Tillis L. Samuel Represented By Edward A Villalobos
Joint Debtor(s):
Sheila Sutton-Samuel Represented By Edward A Villalobos
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
From: 8/30/17, 9/20/17, 11/1/17, 12/13/17, 2/7/18, 2/28/18, 3/28/18, 5/9/18
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:18-01078 Simons (TR) v. Parks et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Trending Up Represented By
Daniel King
Defendant(s):
Robert Parks Pro Se
Barbara Parks Pro Se
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01076 Kiefner v. Nieto
EH
Docket 1
- NONE LISTED -
Debtor(s):
Andrew William Nieto Represented By Krystina T Tran
Defendant(s):
Andrew Nieto Represented By Krystina T Tran
Plaintiff(s):
Leslie Kiefner Represented By Brandon L Fieldsted
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:17-01129 Hadra et al v. Mendez et al
From: 9/13/17, 12/13/17, 4/11/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Defendant(s):
William A. Mendez Represented By Thomas J Polis
Shawna D Mendez Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Plaintiff(s):
Andrew C. Hadra Represented By Peter W Lianides Alan Droste
2:00 PM
Vertical Partners LLC Represented By Peter W Lianides Alan Droste
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18 EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
From: 1/10/18 Also #11
EH
Docket 19
06/06/2018
On May 9, 2018, Plaintiffs filed a Motion to Strike Answer and enter Default. On May 30, 2018, the Court at the hearing issued a tentative ruling which was adopted as the final ruling granting the Motion. Plaintiffs’ counsel was directed to lodge an order. To date, Plaintiffs’ counsel has not lodged an order. Thus, a ruling on the Motion for Default Judgment would be premature given that the Answer has yet to be formally stricken, and default entered.
Additionally, in the Court’s January 10, 2018, tentative ruling, the Court required Plaintiffs to provide "the underlying state court documents (e.g. the state court complaint and judgment) which are essential to final ruling on the Complaint." Finally, the Court indicated that Counsel had not included points and authorities to indicate whether the motion was being made pursuant to collateral estoppel principles or alternatively, setting forth how the evidence provided satisfies the §523(a)(2) standard.
The Court is inclined to CONTINUE the hearing on the Motion for Default Judgment
2:00 PM
and Status Conference to July 11, 2018, at 2:00 p.m., for Plaintiffs to (1) lodge the order on the Motion to Strike; (2) file the requested State Court documents; (3) file points and authorities; and (4) provide notice of the continuance of the hearing on the Motion for Default Judgment and Status Conference, and of the Court’s new deadlines.
The Plaintiffs’ supplemental filings shall be due on or before June 20, 2018. Any opposition shall be due on or before June 27, 2018, and any reply shall be due on or before July 5, 2018.
APPEARANCES WAIVED.
01/10/2018
TENTATIVE RULING
At the hearing on the Plaintiff’s prior Motion for Default Judgment, the Court’s tentative ruling provided, in pertinent part, as follows:
Plaintiff seeks default judgment be entered against Defendant Richard Earl Davis, Jr. (the "Debtor"). Service of the Motion AND of the Summons and Complaint were all effectuated on the Debtor at "2280 Market Street #220 in Riverside, CA". However, the Debtor’s bankruptcy petition indicates his place of residence as "9325 Sunridge
2:00 PM
Drive in Riverside, CA 92508".
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy petition. Deadlines shall be reset accordingly.
An alias summons was issued and the Plaintiff filed a proof of service indicating that the Alias Summons was executed. The instant Motion for Default Judgment was then filed on December 7, 2017. Both Proofs of Service indicate that the Debtor was now served at "9324 Sunridge Drive in Riverside, CA" Again, in a situation where the Debtor/Defendant is nonresponsive, the Plaintiff’s ongoing failure to serve the Debtor at the correct address creates a due process issue which prevents this case from moving forward.
Separately, although the Debtor has disclosed the debt owed to Plaintiff in the amount of $150,000 in his Schedule E/F pursuant to a State Court Judgment, the Court notes that the Plaintiff has failed to attach the underlying state court documents (e.g. the state court complaint and judgment) which are essential to final ruling on the Complaint. Additionally, the Plaintiff has not included points and authorities to indicate whether the motion is made under collateral estoppel principles.
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy petition. Deadlines shall be reset accordingly.
2:00 PM
Ongoing failure to correctly serve documents on the Debtor correctly may result in sanctions.
APPEARANCES REQUIRED.
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Movant(s):
Angelo M Gumbs Represented By Alexander B Boris
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris
Kandis Gumbs Represented By Alexander B Boris
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
From: 8/30/17, 11/1/17, 1/10/18 Also #10
EH
Docket 1
06/06/18
APPEARANCES WAIVED. Status Conference continued to July 11, 2018, at 2:00 p.m. See matter No. 10.
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris
Kandis Gumbs Represented By Alexander B Boris
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
Also #13 EH
Docket 19
On April 30, 2018, Itria Ventures, LLC ("Plaintiff") filed a Motion To Compel Defendants' Responses To Discovery and For Attorney Fees ("Motion"). The Motion indicates that Debtors were served with interrogatories, requests for documents and admissions ("Discovery Requests") to which the Defendants neither responded, nor requested an extension of time to respond.
Plaintiff then properly contacted counsel for the Defendants to meet and confer regarding the Discovery Requests prior to filing the Motion.
By the Motion, Plaintiff seeks an order compelling Defendants to respond to the Discovery Requests and awarding attorney fees and costs jointly and severally to be paid by Defendants and their counsel to the Chekian Law Office for preparation of the Motion in an amount of $1,012.
In response to the Motion, the Defendants concede that they did not respond to the Plaintiff’s Discovery Requests. The stated reason for the nonresponsiveness is due
2:00 PM
to communication issues arising from Defendants’ counsel having health issues as well as unspecified issues related to Defendants’ counsel’s mother. Curiously, the declaration attesting to these issues is signed by the Defendant instead of Defendants’ counsel (the party with personal knowledge of the problems).
Based on Defendants’ concession that the nonresponsiveness to the Discovery Requests was their fault, the vagueness around the basis for the nonresponsiveness, and the failure to address the request for fees by Plaintiff, the Court is inclined to order as follows:
That Attorneys’s fees be awarded to Plaintiff in the full amount of $1,012, jointly and severally to be paid by Defendants and/or Counsel for the Defendants;
That a deadline for responses to the Discovery Requests and/or objections thereto shall be set fourteen days from the date of entry of the order on this Motion; and
That failure to abide by the deadline may result in discovery sanctions, including but not limited to deeming the requests for admission as admitted.
APPEARANCES REQUIRED.
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
2:00 PM
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Movant(s):
Itria Ventures, LLC Represented By Michael F Chekian
Plaintiff(s):
Itria Ventures, LLC Represented By Michael F Chekian
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 11/15/17, 12/6/17, 1/10/18 Also #12
EH
Docket 1
- NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Plaintiff(s):
Itria Ventures, LLC Represented By
2:00 PM
Trustee(s):
Michael F Chekian
Arturo Cisneros (TR) Represented By Thomas H Casey
11:00 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Ernestine Steppes Represented By Mathew Alden
Movant(s):
Ernestine Steppes Represented By Mathew Alden
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 35
On 6/17/16, Brenda Fleming Bell ("Debtor") filed her petition for chapter 13 relief. The Debtor’s case was filed with the assistance of counsel, Thomas Watkins ("Watkins").
The Debtor alleges that throughout the entire case Watkins has been unresponsive to her numerous phone calls and office visits. On 2/13/18, Debtor wrote Watkins a letter informing him that she no longer needed his services. Watkins did not reply.
On 2/16/18, Debtor signed a retainer agreement and substitution of attorney with Suzette C. Douglas. Watkins did not reply to Douglas’s numerous calls, emails, and letters after this transaction.
On 5/2/18, the Debtor filed a motion to withdraw Watkins ("Motion"), and to allow the substitution of Suzette C. Douglas. No opposition has been filed, and the deadline to file an opposition has closed, pursuant to LBR 9013-1(f) (must be filed 14 days before hearing). The Debtor filed a declaration confirming these allegations.
Rule 3-700(C)(5) of the California Rules of Professional Conduct allows withdrawal of attorney is permitted if the client knowingly and freely assents to termination of the employment. The Motion complies with LBR 2091-1, requiring leave of court for a Debtor to be represented by new counsel, and Rule 3-700(A)(1) of the CRPC, holding that if permission of withdrawal is required by local rules, the
11:00 AM
motion must be granted for withdrawal to be valid.
The Motion provides evidence that Watkins did not satisfy his obligation or responsibility as counsel to the Debtor. LBR 3015-1 requires that Debtor’s counsel "must be available to respond to questions throughout the term of the plan and provide other legal services as are necessary for the administration of the case before the bankruptcy court." The Debtor alleges that her counsel’s unresponsiveness has violated this requirement, and almost resulted in her case being dismissed. The Debtor further provides evidence a clear breakdown in communication and the attorney/client relationship which warrants the Court’s granting of this Motion.
TENTATIVE RULING
This Court is inclined to GRANT the Motion in its entirety permitting the proposed substitution and terminating Watkins’ representation of the Debtor.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Brenda Fleming Bell Represented By Thomas Watkins Suzette Douglas
Movant(s):
Brenda Fleming Bell Represented By Thomas Watkins Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 38
On November 27, 2017, Gloria Hayslet ("Debtor") filed a Chapter 13 voluntary petition. On January 18, 2018, Debtor’s Chapter 13 plan was confirmed.
On March 5, 2018, Trustee filed a motion to dismiss case for delinquency. On March 21, 2018, Debtor filed her opposition. After a continuance of the motion to dismiss, Debtor filed a motion to modify plan on April 19, 2018. On April 26, 2018, Trustee filed comments indicating conditional approval of the motion to modify plan, which included the suspension of one monthly payment. Later that day, the motion to dismiss was continued for two more weeks. No order was entered on the motion to modify plan, and, on May 10, 2018, the case was dismissed.
On May 16, 2018, Debtor filed a motion to vacate dismissal. The next day, Trustee filed amended comments indicating conditional approval of the motion to modify plan, which now included the suspension of two monthly payments. Trustee also filed comments on Debtor’s motion to vacate dismissal, which express the Trustee’s unqualified approval of the motion.
11:00 AM
The Court having reviewed the motion, notice being proper and good cause appearing, and noting the absence of any opposition and the Trustee’s unconditional approval of the motion, the Court is inclined to GRANT the motion and VACATE the dismissal order [Dkt. No. 36].
APPEARANCES REQUIRED.
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Movant(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 24
On April 12, 2018, an order was granted converting the Case from Chapter 7 to Chapter 13. On April 16, 2018, Heidi and Jeremy Mayes ("Debtors") filed their petition for chapter 13 relief. Among the estate’s assets is a 2014 Ford F150 Pickup 4D ("the F150"). On May 2, 2018, Debtors filed their Motion to Value the F150 ("Motion"). No opposition has been filed.
The notice was served on 5/02/2018, more than 21 days from the hearing date of 6/7/18. It was properly served to the trustee and the US trustee by electronic filing, properly served to Debtors (individuals), the agent for service of process and the CEO of Union Pacific CAE Federal Credit Union ("Creditor") by US Mail. However, here, the Debtor has failed to provide evidence that Union Pacific CAE Federal Credit Union is the correct creditor. At a minimum a copy of the underlying agreement or certificate of title should have been filed to verify that service was effectuated on the correct party.
The Debtor asserts that the F150 should be valued at $13,109.00. Under § 506(a), the Debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated
11:00 AM
as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
Here, the Debtor’s valuation is based on a KBB typical listing valuation for a sale to a private party. The Debtor filed a declaration in support of her motion to value, in which she details how she purchased the vehicle, and used the KBB to value her vehicle. The KBB valuation is based on a private party range between $12,357 and
$14,336. The Debtor has selected a value relatively in the middle of the range at
$13,109. Absent opposition from the Creditor, the Court finds that the evidence of value is sufficient under the circumstances.
The Court is inclined to CONTINUE the hearing on the Motion to June 28, 2018, at 11:00 a.m. for Debtor to supplement the Motion with a copy of the certificate of title or other evidence identifying the potentially impacted creditor.
APPEARANCES WAIVED. Movant to file and serve notice of the continuance and supplemental evidence in support of the Motion.
Debtor(s):
Jeremy Mayes Represented By Todd L Turoci
Joint Debtor(s):
Heidi Mayes Represented By
Todd L Turoci
Movant(s):
Jeremy Mayes Represented By Todd L Turoci
Heidi Mayes Represented By
Todd L Turoci
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Movant(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 12
On May 14, 2018, Glenda Faye Price ("Debtor") filed her petition for chapter 13 relief. Among the assets of the estate is a 2012 Ford Fusion (the "Fusion"). On May 16, 2018, the Debtor filed her Motion to Value the Fusion ("Motion"). No opposition has been filed.
The notice was served on 5/16/18, which is over 21 days from the hearing date of 6/7/18. It was properly served to the trustee and the US trustee by electronic filing, properly served to the debtor (individual), the agent for service of process and the CEO of Drivetime ("Creditor") (corporation) by US Mail, and properly served to the court. Service of the motion is proper.
Under § 506(a), the Debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The motion asks this Court to determine the value of the Fusion at $6,600, and therefore determine the Creditor’s secured claim as $6,600, and the remainder as unsecured. The Debtor’s valuation is based on a KBB typical listing valuation ($5,601 - $7,995 after mileage adjustment) and KBB private party valuation (Within
11:00 AM
the range of $5,075-$6,688, or specifically $5,882). (Ex.’s 2 & 3). The Debtor filed a declaration in support of her motion to value, in which she details how she purchased the Fusion and used the KBB report to value her vehicle.
TENTATIVE RULING
The Court is inclined to GRANT the Motion. Under the circumstances, including the lack of opposition, the proposed valuation is reasonable. The Court determines the secured value of the Fusion to be $6,600 and the unsecured claim to be
$10,058. Separately, the Court notes that after service and filing of the Motion, Bridgecrest Credit Company, LLC (successor-in-interest to Drivetime) filed a proof of claim asserting a secured claim consistent with the Debtor’s valuation for $6,600.
Thus, as a secondary basis for granting of the Motion, the proposed valuation appears undisputed.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Glenda Faye Price Represented By Nancy Korompis
Movant(s):
Glenda Faye Price Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/24/18 Also #8
EH
Docket 15
On March 27, 2018, Ignacio and Cynthia Aguilar (collectively, "Debtors") filed their petition for chapter 13 relief. Among the assets of the estate is a 2014 Nissan Sentra (the "Sentra"). On April 30, 2018, the Debtors filed their Motion to Value the Sentra ("Motion"). On May 8, 2018, Capital One Auto Finance ("Capital One") filed its opposition to the Motion ("Opposition"). No reply has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the Sentra’s value, and thus its secured portion, should be determined to be $5,800, with an unsecured deficiency claim for $5,308. The Debtors’ valuation is based on a KBB value trade-in report. The Debtors have also provided evidence of estimates obtained to repair damage and normal wear and tear
11:00 AM
on the Sentra. (Ex.’s 3 & 4). Capital One has responded that the value of the Sentra should be no less than $9,975. In support, Capital One has provided evidence that the NADA Guide provides $9,975 as the retail value for the Sentra. To the extent there is a dispute about the valuation, Capital One requests a continuance for an appraisal. The Court is inclined to grant a short continuance for Capital One to have an appraiser evaluate the Sentra’s condition.
APPEARANCES REQUIRED.
Debtor(s):
Ignacio Salvador Aguilar Represented By Jenny L Doling
Joint Debtor(s):
Cynthia Araujo Aguilar Represented By Jenny L Doling
Movant(s):
Ignacio Salvador Aguilar Represented By Jenny L Doling Jenny L Doling
Cynthia Araujo Aguilar Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Ignacio Salvador Aguilar Represented By Jenny L Doling
Joint Debtor(s):
Cynthia Araujo Aguilar Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Graciela Garcia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marcelino Carrillo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Townsend Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Billy Wayne Shipman Jr. Represented By Andrew Nguyen
Joint Debtor(s):
Andrea Shipman Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah Ann Pardo Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Guy F Gerber Represented By
Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Frank W Haywad Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Terrell Wayne Hale Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Caleb Gervin Represented By
Christopher Hewitt
Joint Debtor(s):
Ashley Gervin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Henry M Gutierrez Represented By Nima S Vokshori
Joint Debtor(s):
Mitzy D Gutierrez Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bessie Johnson Desroches Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Justa Nelida Guzman Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Antoinette Marie Tutt Represented By Brian C Miles
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jules A Nelson Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Donald Bollero Represented By Todd L Turoci
Joint Debtor(s):
Jennifer Bollero Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Kevin E Horton Represented By Todd L Turoci
Joint Debtor(s):
Manuel F. Dela Rosa Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
From: 2/8/18 EH
Docket 101
- NONE LISTED -
Debtor(s):
Niculaie David Represented By Marjorie M Johnson
Joint Debtor(s):
Sidonia David Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
11:01 AM
Docket 99
- NONE LISTED -
Debtor(s):
Lesley M Castle Represented By Michael Smith
Dale Parham - INACTIVE - Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 205
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 88
On November 6, 2014, Thomas Quinn ("Debtor") filed a Chapter 13 voluntary petition. On January 8, 2015, Debtor’s Chapter 13 plan was confirmed.
On April 18, 2018, Trustee filed a notice of final cure mortgage payment pursuant to FED. R. BANKR. P. Rule 3002.1. On May 1, 2018, Bayview Loan Servicing, LLC filed its response stating that there are $93,258.08 in postpetition arrears and that Debtors have missed the last twenty-eight mortgage payments. On May 2, 2018, Trustee filed a motion to dismiss the case.
11 U.S.C. § 1307(c)(6) states:
(c) Except as provided in subsection (f) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of
11:01 AM
creditors and the estate, for cause, including ---
(6) material default by the debtor with respect to a term of a confirmed plan
Trustee asserts that the confirmation order provided that Debtor was to make direct mortgage payments and Trustee argues that failure to make such payments constitutes a material default with respect to the terms of a confirmed plan. As demonstrated by the case law cited by Trustee, Trustee’s argument is correct. See, e.g., In re Evans, 543
B.R. 213 (Bankr. E.D. Va. 2016) ("All courts that have examined the question of whether payments required to be made directly to creditors under a confirmed chapter 13 plan are ‘payments under the plan,’ as that term is used in § 1328(a), have answered the question in the affirmative.").
The Court also deems failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-(1)(h).
The Court is inclined to GRANT the motion and DISMISS the case.
APPEARANCES REQUIRED.
Debtor(s):
Thomas F. Quinn Represented By
W. Derek May
Movant(s):
Rod Danielson (TR) Pro Se
11:01 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 118
- NONE LISTED -
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 75
- NONE LISTED -
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Eric Kissell Represented By
William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 5/9/18 Also #2- #5 EH
Docket 578
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays
11:00 AM
Franklin R Fraley Jr
(HOLDING DATE)
From: 2/14/18, 3/28/18, 5/9/18 Also #1- #5
EH
Docket 521
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
From: 5/11/16, 6/8/16, 6/29/16, 8/31/16, 10/5/16, 11/9/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18, 5/16/18
Also #1- #5 EH
Docket 322
05/11/2016
Based on the representations made to the Court by counsel for the Parties that negotiations are ongoing, and based on the consent of the Parties to a continuance, the Court shall CONTINUE the hearing on the Motion to June 8, 2016 at 11:00 a.m.
APPEARANCES ARE WAIVED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Also #1- #5 EH
Docket 637
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
11:00 AM
D Edward Hays Franklin R Fraley Jr
Also #1- #4 EH
Docket 642
On October 20, 2013, Douglas J. Roger, MD, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On October 20, 2015, six different adversary proceedings were filed by Trustee in an attempt to recover money or property pursuant to 11 U.S.C. § 547 and 548.
In April 2016, Trustee filed three different motions to approve compromise.1 These compromise motions faced objections by Kajan Mather & Barish ("KMB") (KMB’s objections were ultimately withdrawn) as well as Revere Financial Corporation ("Revere"). Revere’s objection was primarily based on its assertion that it would provide a better offer for the compromised claims, and, therefore, further settlement discussions should be permitted. As a result of Revere’s unresolved objection, the
11:00 AM
hearings on the motions to approve compromises were continued multiple times.
On November 5, 2016, Debtor filed motions to enforce the compromise for the compromise motions related to adversary proceedings 6:15-ap-1307 and 6:15-
ap-1309. Later in November, the Court approved stipulations continuing the motions to enforce compromises, and the original compromise motions, to February 1, 2017. On January 18, 2017, Trustee and Revere filed oppositions to the motions to enforce compromises. Revere’s opposition stated that Revere and Trustee had reached a settlement in principle, and that the pending settlement would provide more benefit to the estate that the pending compromises. Among the assertions made by Revere were the following:
"Indeed, the Third, Fifth, and Ninth Circuits all concur that the settlement of a claim that the estate owns is a sale of property of the estate, which triggers a duty to consider better offers." [Dkt. No. 420, pg. 13, lines 3-5].
"A bankruptcy court is obliged to consider . . . whether any property of the estate that would be disposed of in connection with the settlement might draw a higher price through a competitive process and be the proper subject of a section 363 sale." (quoting In re Mickey Thompson, 292 B.R. 415, 421-22 (B.A.P. 9th Cir. 2003)).
The night before the hearings on February 1, 2017, Revere and Trustee filed a voluminous "global" settlement. Ultimately, this global settlement was not properly before the Court at the hearings on February 1, 2017, but being generally aware of the contents of the filings, and because Revere and Trustee alleged that the global settlement would provide more benefit for the estate, the Court continued the original compromise motions (as well as the motions to enforce compromises) to allow for the proper consideration of overbids. The Court cautioned Revere, however, that it may be difficult to successfully win an overbid if the Court was unable to discern the value being offered for a specific asset.
After multiple continuances of the compromise motions, the Court held another hearing on the matter on June 28, 2017. At the hearing, the Court essentially reiterated
11:00 AM
its position from the hearing of February 1, 2017, stating that it believed an opportunity to overbid was warranted in this case, but that an overbid may not be successful it is infeasible to ascertain the value being offered for a specific asset. On July 26, 2017, Trustee filed a notice of motion for approval of bidding procedures. On August 2, 2017, the Court held an auction of the claims asserted in adversary proceedings 6:15-ap-1307 and 6:15-ap-1309, with Revere ultimately prevailing as the highest bidder on the former, and the adversary defendant ultimately prevailing as the highest bidder on the latter. As a result of sustained disputes between Revere and Debtor, the orders for the hearings of August 2, 2017, were not entered for several months.
On January 24, 2018, Revere filed a renewed global compromise motion, slightly adjusted to account for the results of the auction. Bank of Southern California, N.A. and American Express Company ("American Express") filed limited oppositions to the global compromise, while Debtor filed an opposition arguing that (1) any benefit Revere was offering was illusory; and (2) an auction should be held to allow parties to bid on any claims or interests being purchased by Revere. The Court instructed the parties that it intended to consider overbids on the global compromise.
On April 18, 2018, Trustee filed a motion for sale of property of the estate. While not completely clear, the motion appeared to contemplate that any potential overbidders must bid against the entire bid made by Revere in the global compromise. In light of the fact that potential overbidders would likely only be interested in a single asset or category of assets, and considering that Revere’s global settlement contains many provisions which are only material to Revere, at a hearing on May 9, 2018, the Court instructed the parties that there needed to be some mechanism by which a claim could be severed out and purchased by a potential overbidder.
On May 21, 2018, Trustee filed a motion for order authorizing auction of litigation claims held by the estate (the "Motion"). According to the Motion, American Express offered $40,000 for the claims related to adversary proceeding 6:15-ap-1303, Dr.
Freedman offered $14,000 for the claims related to the claims for which there is a pending compromise motion as noted in footnote 1, and Dr. Roger offered $10,000 for various claims. Pursuant to the Motion, Trustee seeks authority to auction those claims for which he has received a bid. Of particular note is that the Motion seeks to establish a "pre-determined reserve"; if the bids at the auction do not reach an
11:00 AM
undisclosed amount, Trustee asserts that he will not sell the claims.
The Motion drew oppositions from Revere and Debtor (as well as American Express, which filed a late joinder to Debtor’s opposition). Revere argues that the claims should not be auctioned at all. Debtor argues that Trustee’s pre-set reserve is meaningfully chilling bidding. For the reasons set forth below, the Court concludes that Revere’s opposition lacks merit and while taking note of the arguments made in Debtor’s opposition, concludes that those arguments do not constitute a basis for not holding an auction.
REVERE’S OPPOSITION
As a preliminary note, the Court finds Revere’s opposition to be somewhat disingenuous and possibly precluded by principles of judicial estoppel. As noted in the background section, Revere previously vigorously argued that compromise motions should be continued to allow Revere the opportunity to negotiate with Trustee and eventually present an overbid. Revere’s contention that Mickey Thompson is inapplicable is misleading, at best. The section of Mickey Thompson quoted, from Revere’s previous briefing, in the background section, and incorporated into this Court’s previous tentative ruling, continues on to state that: "[t]he possibility that someone else may be willing to pay a higher price triggers the prospect of an auction that could yield an even higher price." In re Mickey Thompson, 292 B.R. 415, 422 (B.A.P. 9th Cir. 2003)).
While Revere’s assertion that Mickey Thompson does not require this Court to hold an auction in this situation is technically true, the argument misses the point. As previously noted by this Court, Mickey Thompson, as a Bankruptcy Appellate Panel decision, does not require this Court to do anything, in any situation. The principles articulated in Mickey Thompson, however, which this Court finds to be well-reasoned, support the implementation of a competitive bidding environment when there is
11:00 AM
reason to believe that doing so will produce a benefit to the bankruptcy estate. As previously argued by Revere, "[w]hen confronted with a motion to approve a settlement under Rule 9019(a), a bankruptcy court is obliged to consider, as part of the ‘fair and equitable’ analysis, whether any property of the estate that would be disposed of in connection with the settlement might draw a higher price through a competitive process and be the proper subject of a section 363 sale." Id. at 421-22 (emphasis added). Clearly, if a higher overbid has been presented by the hearing, then the Court would know that an auction process would yield a better result, and it would be prudent to hold an auction. Yet, Mickey Thompson simply does not stand for the proposition that the Court can only hold an auction if it knows that such an auction will yield a higher return for the estate.
The remainder of Revere’s opposition argues, in one form or another, that the global compromise provides more benefit to the estate than the auction. First of all, the Court simply cannot analyze Revere’s arguments until the counterbids have been determined, which will occur through an auction. Therefore, Revere’s arguments are premature, since the arguments amount to the contention that Revere should win an auction that has yet to be held.
DEBTOR’S OPPOSITION
Debtor’s opposition primarily objects to the Motion because of disagreement with the pre-determined undisclosed reserve. To the extent that Debtor’s opposition argues against the merits of Revere’s global settlement, the Court finds these arguments to be irrelevant for the purposes of holding the contemplated auction.
The Court has not been presented with any applicable case law addressing the appropriateness of Trustee’s undisclosed pre-set reserve. If any party wishes to brief this narrow issue on a short schedule, the Court may be inclined to allow additional briefing on the appropriateness of a undisclosed reserve.
The Court notes that it does not find the establishment of a minimum bid or a pre-set
11:00 AM
reserve (which are functionally the same) to be legally impermissible, setting aside the question of whether such amount is disclosed. See, e.g., In re Wilson Freight Co., 30
B.R. 971, 975 (Bankr. S.D.N.Y. 1983) (quoting 3 COLLIER BANKRUPTCY PRACTICE GUIDE ¶ 43.02[3](1982)) ("The trustee may want to fix an upset price or, in an auction sale, to offer the property with reserve, that is with the right to reject even the highest offer on the grounds of inadequacy The trustee must exercise great care in
preparing the terms of the notice which should clearly set forth the relevant information."). Trustee is simply not required to sell the assets at issue here, and it necessarily follows that Trustee retains the right to decline to sell the assets if Trustee believes the offer is unacceptable. For example, if Trustee received a $1 offer on a claim believed to be worth $10,000, assuming Trustee has reserved the right to decline the highest offer, it would seem the only appropriate action would be to reject the $1 offer.
The above analysis does not consider whether the pre-set reserve has been disclosed or has remained undisclosed. The ramifications of the distinction are not completely clear because Debtor simply does not explain why the failure to disclose the amount of the pre-set reserve should result in a denial of the motion. 2
While it appears that Debtor is operating under a misinterpretation of the nature of the reserves (see footnote 2), the Court does have some concern that the reserve could result in a chilling of bidding. Notably, the Motion seems to indicate that Trustee is setting the reserves on the basis of what it believes the claims are worth to Revere, as evidenced by the global settlement agreement.3 The result of such process may functionally be that Revere is allowed to cast an unenforceable bid in secret, with Trustee retaining the right ultimate discretion over the results of the auction.
While it is true that the Motion creates a less than ideal situation which may not maximize value of the claims to be sold, it is also true that all auctions are less than perfect. A "pure" auction, netting maximum value, is a hypothetical economic concept which cannot be replicated in the confines of bankruptcy. Chapter 7 trustees are incentivized to efficiently liquidate assets to distribute to creditors. As such, a Chapter 7 trustee may sell real property for a certain amount because it is the best offer it has received after a reasonable amount of time, and after expending a reasonable amount of effort. The reasonableness of the procedures utilized in bankruptcy sales does not present a black and white analysis. Here, the effect of the inclusion of an undisclosed
11:00 AM
minimum bid is less than clear.
Ultimately, however, the purpose of the contemplated auction is to assist the Court and the parties in assessing the fair market value of the subject claims, and potentially selling those claims. The presence of an undisclosed reserve does not completely undermine those objectives. It is certainly possible that the bidding on a claim may be so low as to serve as compelling evidence that that claim has little to no fair market value. It is also possible that the bidding on a claim may be high enough to serve as material evidence that the bidding party is offering more value than Revere, regardless of whether such bid is accepted. Of course, it is possible that the Trustee is satisfied with the highest bid, and the claim is sold. If any of these situations were to occur, the auction would have served its purpose.
On the other hand, the highest bid may fall in that range where it is not clear whether the bidder has offered more or less value than that offered by Revere as part of the global settlement agreement. In such a case, while the auction would assist the Court in determining the fair market value of such claim, the lack of transparency in the process may decrease the weight assigned to such evidence. Ultimately, however, evidence of some weight is better than no evidence at all.
The Court is inclined to GRANT the motion and hold an auction.
APPEARANCES REQUIRED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan
11:00 AM
Movant(s):
George Hanover
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Adv#: 6:15-01308 Cisneros v. BWI CONSULTING, LLC et al
A. Cisneros against BWI CONSULTING, LLC, Black and White, Inc., BLACK AND WHITE BILLING COMPANY, BLACK AND WHITE INK, MEHRAN DEVELOPMENT CORPORATION. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 1/13/16, 3/23/16, 5/25/16, 7/27/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18, 5/16/18
EH
Docket 1
- NONE LISTED -
11:00 AM
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
MEHRAN DEVELOPMENT Pro Se
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
11:00 AM
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17, 2/14/18, 5/16/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
1:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
01/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb
1:00 PM
Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Plaintiff(s):
RICHARD K DIAMOND Represented By Richard S Berger Peter M Bransten Michael I Gottfried
Aleksandra Zimonjic Monica Rieder Cynthia M Cohen
1:00 PM
Trustee(s):
Roye Zur
Richard K Diamond (TR) Represented By Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten
Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
Adv#: 6:10-01329 DIAMOND v. Empire Partners, Inc., a California Corporation et
(Defendant - Empire Partners, Inc) HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18
EH
Docket 1
1:00 PM
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld
Previti Realty Fund, L.P. Represented By Jonathan A Loeb Jeffrey Rosenfeld
The James Previti Family Trust Represented By Jonathan A Loeb Jeffrey Rosenfeld
Plaintiff(s):
RICHARD K DIAMOND Represented By Richard S Berger Michael I Gottfried
1:00 PM
Trustee(s):
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Richard K Diamond (TR) Represented By Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten
Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
Adv#: 6:09-01235 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
1:00 PM
11/27/17, 3/5/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
David Loughnot Jonathan A Loeb Jeffrey Rosenfeld
DOES 1 through 100, inclusive Pro Se
Plaintiff(s):
RICHARD K. DIAMOND Represented By Richard S Berger Michael I Gottfried
Aleksandra Zimonjic
1:00 PM
Trustee(s):
Monica Rieder John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Richard K Diamond (TR) Represented By Michael I Gottfried Richard S Berger Rodger M Landau Richard K Diamond Peter M Bransten
Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17, 2/14/18, 5/16/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays
2:00 PM
Trustee(s):
Chad V Haes
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Adv#: 6:16-01295 Abbasi v. Surace et al
(HOLDING DATE)
From: 2/15/17, 5/17/17, 6/7/17, 10/25/17, 11/29/17, 3/21/18, 4/11/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Defendant(s):
Jaison Vally Surace Represented By Batkhand Zoljargal
Walie Qadir Represented By
Batkhand Zoljargal
Marym Qadir Represented By
Batkhand Zoljargal
Plaintiff(s):
Setareh Abbasi Represented By
11:00 AM
Trustee(s):
Bruce Dannemeyer Bruce Dannemeyer
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
Docket 23
6/13/18
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 744.75 Trustee Expenses: $ 60.06
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Isidro Ronquillo Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Carmen Olivares Represented By
James Geoffrey Beirne
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
From: 6/6/18 EH
Docket 23
On August 31, 2016, Jay Goodman ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge.
On February 12, 2018, Debtor filed a motion for an order to show cause why Delia Moya ("Moya"), Debtor’s ex-spouse, should not be held in civil contempt. The Court issued a corresponding order to show cause on February 27, 2018 (the "1st OSC"). On March 14, 2018, Moya filed a response to the 1st OSC. After issuing a tentative ruling, the Court, at a hearing on March 28, 2018, orally vacated the 1st OSC. On May 4, 2018, the Court issued an order vacating the 1st OSC and issuing an order to show cause why Debtor’s attorney, Christopher Hewitt ("Hewitt") should not be sanctioned for filing a frivolous pleading (the "2nd OSC").
On May 21, 2018, the hearing on the 2nd OSC was continued for one week by stipulation of the parties. On May 23, 2018, Hewitt filed his opposition to the 2nd OSC. On May 30, 2018, Moya filed a reply, requesting $6,850 for responding to the 1st OSC and $2,000 for filing the reply in connection with the 2nd OSC.
11:00 AM
On May 31, 2018, Moya filed a motion for attorney fees (the "Motion"). Moya’s Motion primarily requests that Debtor reimburse Moya for $8,350 in attorney’s fees ($6,850 for responding to the 1st OSC and $1,500 for the Motion). The Motion was set for hearing on June 27, 2018.
For the reasons set forth in the 2nd OSC and the reply, the Court believes that monetary sanctions are appropriate. Hewitt to address any ethical concerns arising from a possible conflict of interest presented by the instant situation.
APPEARANCES REQUIRED.
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 5
On May 29, 2018, William & Becky Colvin (collectively "Debtors"; individually, "William" and "Becky") filed a Chapter 7 voluntary petition. That same day, Debtors filed two motions: (1) a "motion for exemption from credit counseling due to mental incapacity and physical disability"; and (2) a "motion that William J. Colvin be appointed as "next friend" nunc pro tunc for co-debtor Becky L. Colvin." Both motions were set for hearing on June 13, 2018. The Court notes that, pursuant to the Local Rules, the form notice used by Debtors, and the contents of the motions, any party wishing to oppose the motions must file opposition at least fourteen days prior to the hearing. Debtors scheduled the instant hearings on shortened notice without Court permission, however, and, as a result, the opposition deadline was a day after the service deadline.
The factual background is the same for both requests. Debtors assert that Becky was kicked in the head by a horse and has spent the last twelve years in an at-home hospital bed with the exception of health care appointments. Debtors assert that Becky is unable to talk or effectively communicate.
11:00 AM
Waiver of Credit Counseling Requirement
11 U.S.C. § 109(h)(4), which identifies an exception to the prepetition credit counseling requirement, states:
The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and "disability" means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in person, telephone, or Internet briefing required under paragraph (1).
The Court finds that William’s declaration sets forth sufficient evidence to establish Becky’s disability for purposes of § 109(h)(4). Due to the improper notice of the motion for a waiver of the credit counseling requirement, however, the Court is inclined to CONTINUE this motion for two weeks, at which time the Court intends to GRANT the motion if no opposition has been filed.
Next Friend
FED. R. BANKR. P. Rule 1004.1 allows "a representative, including a general guardian, committee, conservator, or similar fiduciary," to file a voluntary petition on behalf of an incompetent person.
The rule further provides that:
11:00 AM
[a]n infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.
Rule 1004.1 is patterned after FED.R.CIV.P. Rule 17(c), which applies to adversary proceedings pursuant to FED. R. BANKR. P. Rule 7017. That rule provides that an incompetent person may sue "by a next friend or by a guardian ad litem" if the incompetent person does not have a duly appointed representative, and provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action."
Cases interpreting Rule 17(c) look to the law of the state in which the subject is domiciled and follow the state's incompetency laws." In re Burchell, 2014 WL 1304635, at *1 (Bankr. N.D. Ohio 2014)(internal citations omitted). This court shall thus look to the California Probate Code’s § 811 which outlines the possible bases for a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, including for example, incapacity to contract or to execute wills or trusts.
In support of the Motion, the Debtors have attached the Declaration of William in which he details the extensive limitation that Becky experiences due to the injury suffered by a horse. Notwithstanding these diagnosis, § 811(d) provides that "the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." Instead, California law requires evidence of specific deficits and a link between the identified deficits and the acts that the allegedly incompetent person would otherwise have capacity to perform. The types of deficiencies are outlined in § 811 as follows:
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Information processing, including, but not limited to, the following:
Short- and long-term memory, including immediate recall.
Ability to understand or communicate with others, either verbally or otherwise.
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
11:00 AM
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Hallucinations.
Delusions.
Uncontrollable, repetitive, or intrusive thoughts.
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
While William’s declaration presents evidence of Becky’s inability to community, the Court will require supplemental evidence as to Becky’s state of mind and ability to communicate (for example, a written medical diagnosis).
APPEARANCES REQUIRED.
Debtor(s):
William J Colvin Represented By Ronald L Brownson
Joint Debtor(s):
Becky L Colvin Represented By Ronald L Brownson
Movant(s):
William J Colvin Represented By Ronald L Brownson Ronald L Brownson Ronald L Brownson
11:00 AM
Becky L Colvin Represented By Ronald L Brownson
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
Docket 7
On May 29, 2018, William & Becky Colvin (collectively "Debtors"; individually, "William" and "Becky") filed a Chapter 7 voluntary petition. That same day, Debtors filed two motions: (1) a "motion for exemption from credit counseling due to mental incapacity and physical disability"; and (2) a "motion that William J. Colvin be appointed as "next friend" nunc pro tunc for co-debtor Becky L. Colvin." Both motions were set for hearing on June 13, 2018. The Court notes that, pursuant to the Local Rules, the form notice used by Debtors, and the contents of the motions, any party wishing to oppose the motions must file opposition at least fourteen days prior to the hearing. Debtors scheduled the instant hearings on shortened notice without Court permission, however, and, as a result, the opposition deadline was a day after the service deadline.
The factual background is the same for both requests. Debtors assert that Becky was kicked in the head by a horse and has spent the last twelve years in an at-home hospital bed with the exception of health care appointments. Debtors assert that Becky is unable to talk or effectively communicate.
11:00 AM
Waiver of Credit Counseling Requirement
11 U.S.C. § 109(h)(4), which identifies an exception to the prepetition credit counseling requirement, states:
The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and "disability" means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in person, telephone, or Internet briefing required under paragraph (1).
The Court finds that William’s declaration sets forth sufficient evidence to establish Becky’s disability for purposes of § 109(h)(4). Due to the improper notice of the motion for a waiver of the credit counseling requirement, however, the Court is inclined to CONTINUE this motion for two weeks, at which time the Court intends to GRANT the motion if no opposition has been filed.
Next Friend
FED. R. BANKR. P. Rule 1004.1 allows "a representative, including a general guardian, committee, conservator, or similar fiduciary," to file a voluntary petition on behalf of an incompetent person.
The rule further provides that:
11:00 AM
[a]n infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.
Rule 1004.1 is patterned after FED.R.CIV.P. Rule 17(c), which applies to adversary proceedings pursuant to FED. R. BANKR. P. Rule 7017. That rule provides that an incompetent person may sue "by a next friend or by a guardian ad litem" if the incompetent person does not have a duly appointed representative, and provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action."
Cases interpreting Rule 17(c) look to the law of the state in which the subject is domiciled and follow the state's incompetency laws." In re Burchell, 2014 WL 1304635, at *1 (Bankr. N.D. Ohio 2014)(internal citations omitted). This court shall thus look to the California Probate Code’s § 811 which outlines the possible bases for a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, including for example, incapacity to contract or to execute wills or trusts.
In support of the Motion, the Debtors have attached the Declaration of William in which he details the extensive limitation that Becky experiences due to the injury suffered by a horse. Notwithstanding these diagnosis, § 811(d) provides that "the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." Instead, California law requires evidence of specific deficits and a link between the identified deficits and the acts that the allegedly incompetent person would otherwise have capacity to perform. The types of deficiencies are outlined in § 811 as follows:
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Information processing, including, but not limited to, the following:
Short- and long-term memory, including immediate recall.
Ability to understand or communicate with others, either verbally or otherwise.
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
11:00 AM
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Hallucinations.
Delusions.
Uncontrollable, repetitive, or intrusive thoughts.
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
While William’s declaration presents evidence of Becky’s inability to community, the Court will require supplemental evidence as to Becky’s state of mind and ability to communicate (for example, a written medical diagnosis).
APPEARANCES REQUIRED.
Debtor(s):
William J Colvin Represented By Ronald L Brownson
Joint Debtor(s):
Becky L Colvin Represented By Ronald L Brownson
Movant(s):
William J Colvin Represented By Ronald L Brownson Ronald L Brownson Ronald L Brownson
11:00 AM
Becky L Colvin Represented By Ronald L Brownson
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 4/25/18 EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
2:00 PM
Trustee(s):
D Edward Hays
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
EH
Docket 52
- NONE LISTED -
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Movant(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
2:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
From: 3/28/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
Docket 17
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
2:00 PM
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
11:00 AM
From: 2/8/18, 6/7/18 EH
Docket 101
- NONE LISTED -
Debtor(s):
Niculaie David Represented By Marjorie M Johnson
Joint Debtor(s):
Sidonia David Represented By Marjorie M Johnson
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
11:00 AM
MOVANT: WILLIAM MEINEKE AND KATHIE MEINEKE
From: 6/5/18 EH
Docket 17
The Court is inclined to DENY the motion for improper services. The Court’s self- calendaring procedures require that motions to continue the automatic stay which are set on shortened notice be served on secured creditors pursuant to FRBP 7004. Here, it does not appear that Debtors have served the primary secured creditor, Dovenmuehle Mortgage, pursuant to FRBP 7004.
APPEARANCES REQUIRED.
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Movant(s):
William Meineke Represented By Todd B Becker
11:00 AM
Todd B Becker
Kathie Meineke Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Veronica Hernandez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeremy Mayes Represented By Todd L Turoci
Joint Debtor(s):
Heidi Mayes Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Caleb Gervin Represented By
Christopher Hewitt
Joint Debtor(s):
Ashley Gervin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Louis Thomas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Heather Ann Pessoa Bond Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sally N. Harris Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Diana Carol Robbins Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eddie Fitz Represented By
Brian C Andrews
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Scott Hawkins Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Noemi Patricia Nuno Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lorena Valadez Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James Owen Hall Jr Represented By Dana Travis
Joint Debtor(s):
Jodie Beryl Hall Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elizabeth Dean Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jason Allen Colleasure Represented By Dana Travis
Joint Debtor(s):
Julia Ann Colleasure Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shari L. De Andrade Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Guirguis Yacoub Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Leslie M. Wolfrom Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rudy Correa Represented By
Christopher Hewitt
Joint Debtor(s):
Mary Correa Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mark Irwin Barule Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Luis Felipe Tejeda Represented By Dana Travis
Joint Debtor(s):
Veronica Esther Tejeda Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Linda Blakely Represented By Suzette Douglas
Joint Debtor(s):
Calvin Blakely Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
U.S.C. 329 and Federal Rule Of Bankruptcy Procedure 2016 Also #29
EH
Docket 15
- NONE LISTED -
Debtor(s):
Charles Williams III Represented By Stephen L Burton
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #28 EH
Docket 0
- NONE LISTED -
Debtor(s):
Charles Williams III Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria E Rivas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael D Hayden II Represented By Sunita N Sood
Joint Debtor(s):
Joanna Queen Hayden Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bryan Gira Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Justice Morse Jr. Represented By Robert W Ripley
Joint Debtor(s):
Helen Julia Morse Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alexander Tofick David Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Oscar Franco Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Edubijes Franco Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bernice Hernandez Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Janelle A. Kline Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Lynette Kathryn Beaver Represented By Anerio V Altman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 3/13/17
From: 11/30/17, 1/25/18, 4/12/18 EH
Docket 30
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
11:00 AM
On October 20, 2017, the Court granted the Motion for OSC and ordered
Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
11:00 AM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 10
On May 22, 2018 ("Petition Date"), Peter Najim ("Debtor") filed his petition for chapter 13 relief. Creditor Cardenas Three, LLC ("Cardenas") moves this Court for dismissal of the Debtor’s case on the grounds of ineligibility ("Motion"). Specifically, Cardenas asserts that the Debtor did not receive his credit counseling certificate prior to the filing of the petition as required pursuant to §109(h)(1).
The Docket reflects that on May 23, 2018, the Debtor filed his Certificate of Counseling. The Certificate of Counseling specifically indicated that the Debtor received the counseling required under §109 on May 23, 2018, postpetition.
On June 11, 2018, the Debtor late-filed his opposition to the Cardenas Motion. The Debtor does not dispute the grounds for dismissal. His response is that he did in fact take the credit counseling class on the day the petition was filed. However, a certificate with the 5/23 date was issued in error. The Debtor’s declaration is signed under penalty of perjury.
However, the new certificate indicates the Debtor completed his counseling session at 7:24 p.m on May 22, 2018, and the Court’s docket reflects that the petition was filed at 6:03 p.m. on May 22. The plain language of the §109 appears to contemplate that the counseling session must have been completed on a "date" preceding the Petition Date. As such, even if the Debtor completed the counseling session on May 22, this would have been too late. However, even assuming, arguendo, that a counseling session taken and completed the day of the petition filing
11:00 AM
is acceptable, the Debtor completed his session after the petition had already been filed.
Cardenas has correctly pointed out that the Debtor was ineligible to file his petition on May 22, 2018, and the Debtor has provided no authority indicating he fits into any exception for this deficiency. As such, the Court is inclined to GRANT the Motion and dismiss the case without a bar to refiling.
APPEARANCES REQUIRED.
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Movant(s):
Cardenas Three, LLC Represented By Coby Halavais
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
Claudie Gene West Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 81
- NONE LISTED -
Debtor(s):
James Leonard Blow Jr. Represented By Jonathan D Doan
Joint Debtor(s):
Amanda Joyce Atkinson-Blow Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 63
- NONE LISTED -
Debtor(s):
Melanie Lourdes Davis Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Also #49 EH
Docket 3
On December 13, 2017, Sean Coy ("Debtor") filed a Chapter 13 voluntary petition. On February 2, 2018, Debtor filed a motion to avoid the lien of Deutsche Bank National Trust Company ("Deutsche"). On February 15, 2018, Deutsche filed its opposition to the motion to avoid lien. In its opposition, Deutsche argued that a portion of the originally senior lien1, held by FMJM RWL III Trust 2015-1 ("FMJM") is actually subordinate to the originally junior lien2 of Deutsche, due to the execution, after the recordation of Deutsche’s lien, of a mortgage modification without the consent of Deutsche which Deutsche argues materially prejudices its junior lien.
Deutsche argued that because of this subordination, its lien was not wholly unsecured, and therefore could not be avoided.
On February 27, 2018, Deutsche filed a complaint against FMJM seeking declaratory relief. On March 30, 2018, FMJM filed a motion to dismiss for failure to state a claim. On April 12, 2018, Deutsche filed its opposition. By stipulation of the parties, the
12:00 PM
instant hearing has been previously continued for two weeks.
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 464. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id at 678.
DECLARATORY JUDGMENT
FED. R. BANKR. P. Rule 7001(2) & (9) state the following:
An adversary proceeding is governed by the rules of this Part VII. The following are adversary proceedings:
(2) a proceeding to determine the validity, priority, or extent of a lien or other interest in property, other than a proceeding under Rule 4003(d);
(9) a proceeding to obtain a declaratory judgment relating to any of the foregoing
12:00 PM
Here, Deutsche seeks a judgment declaring that its lien is entitled to higher priority that a portion of FMJM’s lien.
The starting point for priority of liens under California law is "first in time, first in right." See generally CAL. CIV. CODE § 2897. Deutsche points to Gluskin v. Atlantic Sav. & Loan Ass’n, 32 Cal. App. 3d 307 (Cal. Ct. App. 1973) and Lennar Ne.
Partners v. Buice, 49 Cal. App. 4th 1576 (Cal. Ct. App. 1996) as standing for the proposition that if a senior lienholder executed a modification which prejudices the junior lienholder, the senior lienholder may lose priority to the extent of the modification. See also MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("If modifications in the senior lien have a material adverse effect on the junior lien either by increasing the risk of default or making protection of the junior lienor’s position potentially more burdensome, then the senior lien may lose priority to the junior lien."). FMJM argues that the cases cited above contain unique factual situations not applicable here and that the California Court of Appeals has constrained the holding of Gluskin and Lennar to specific factual situations. See Friery v. Sutter Buttes Sav. Bank, 61 Cal. App. 4th 869 (Cal. Ct. App. 1998); see also MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("The possible argument from these earlier cases, that all junior lienors, not solely subordinating sellers, should be able to gain priority over modifications to the senior lien made without their consent, has been rejected.").
Recently, citing all three of the above cases, the California Court of Appeals synthesized the existing case law with the following succinct statement:
Subsequent cases have made clear that a material modification of a senior lien, such as an increase in the principal or interest rate, does not result in loss of priority absent contractual subordination. Where a seller agrees to subordinate to construction loans, a material modification of those loans may result in their total loss of priority. However, in the case of a subordinating junior lender, only the modification of the senior lien loses priority.
12:00 PM
Bank of New York Mellon v. Citibank, N.A., 8 Cal. App. 5th 935, 954 (Cal. Ct. App. 2017) (citations omitted).
FMJM implicitly, and to some degree explicitly, asserts that this case is closer to the situation in Friery than the situation in Lennar. This Court disagrees. Here, the notes now held by FMJM and Deutsche were executed simultaneously, as first and second mortgage, with the intention that the security interest evidenced by the second mortgage be subordinated to the security interest evidenced by the first mortgage. In Friery, however, there was originally only a single lien on the property – the original borrowers then sold the property to a third party, who encumbered the property with additional liens. That is not the situation here. Here, the two mortgages were executed simultaneously, similar to the situation in Lennar, and, as a result, the subordination principles outlined by Bank of New York Mellon, Lennar, and Gluskin are applicable.
In distinguishing Lennar from the instant situation, FMJM argues that, unlike the case in Lennar, here the modification did not materially prejudice the junior lienholder, Deutsche. The Court need not reach this argument at the motion to dismiss standard because such an argument is usually factual in nature. See MILLER & STARR CAL. REAL ESTATE § 10:102 (4th ed. 2017) ("Usually, whether a modification has a material adverse impact on a junior lienor is a question of act, but when reasonable minds cannot differ, the conclusion that the modification resulted in a material adverse effect can be decided as a matter of law."). While FMJM has provided arguments as to why the Deutsche is not prejudiced by the modification, the complaint of Deutsche alleges sufficient factual matter to plausibly allege that material prejudice could plausibly have occurred. FMJM’s assertions on this point are not appropriate at the motion to dismiss stage.
The Court is inclined to DENY the motion to dismiss.
APPEARANCES REQUIRED.
12:00 PM
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Movant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Kristin)
From: 4/26/18, 5/10/18 Also #48
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:15-01206 Speier v. Simmons et al
From: 5/22/18 EH
Docket 1
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
Angela Simmons Represented By David Brian Lally
David Schanhals Represented By David Brian Lally
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
9:30 AM
Elizabeth A LaRocque
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17, 2/28/18, 3/21/18
EH
Docket 1
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 1/24/18, 3/7/18, 5/9/18, 5/30/18
EH
Docket 1
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
10:00 AM
MOVANT: JOSE & LILIAN VELASCO
From: 6/5/18 EH
Docket 9
6/5/2018
The Court is inclined to DENY the motion. While Debtors have provided sufficient evidence to overcome the presumption of bad faith as to their most recent Chapter 13 case, Debtors have not provided clear and convincing evidence to overcome the presumption of bad faith as their second most recent Chapter 13 case, which was pending within the previous year. Furthermore, Wells Fargo Bank, N.A., the holder of the note secured by Debtors’ real property during the second most recent Chapter 13 case, had a relief from stay motion pending at the time of the case’s dismissal. The Court takes judicial notice of the contents of docket number 72 in case 6:12-
bk-35097-MH, which appears to state that Debtors were 29 months behind on their mortgage payments on October 5, 2017. 11 U.S.C. § 362(c)(3)(C)(ii) provides for a presumption of bad faith as to a creditor if a motion from relief from stay is granted or pending at dismissal in a case during the previous year. Here, Debtors’ unsupported statement that their income has increased is insufficient to overcome the presumption of bad faith as to the mortgagee of their real property.
APPEARANCES REQUIRED.
Debtor(s):
Jose Velasco Represented By
10:00 AM
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Movant(s):
Jose Velasco Represented By
Daniel King
Lilian Micaela Velasco Represented By Daniel King Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: CREDIT ACCEPTANCE CORPORATION
EH
Docket 13
- NONE LISTED -
Debtor(s):
Stephan D. Clark Represented By Patricia M Ashcraft
10:00 AM
Movant(s):
Credit Acceptance Corporation Represented By Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: TD AUTO FINANCE LLC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Christopher Michael Hafer Represented By
10:00 AM
Movant(s):
Joel M Feinstein
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
MOVANT: COUNTY OF RIVERSIDE
EH
Docket 14
Service is Proper Opposition: Yes
Debtor had a single case pending with the previous year. Therefore, pursuant to 11
U.S.C. § 362(c)(3)(A), the automatic stay in this case expired on May 26, 2018, before the filing of the motion under consideration. Therefore, to the extent that the motion requests relief which is not in rem relief, the motion is DENIED as moot.
Movant also requests relief pursuant to § 362(d)(4)(B), noting that this is the second bankruptcy case filed by Debtor affecting the property. Debtor’s opposition acknowledges that his financial situation is somewhat unstable due to health issues.
10:00 AM
Debtor asserts that the two bankruptcy filings are not in bad faith.
The Court declines to conclude that bad faith is present in the situation simply as a result of a single previous bankruptcy filing. Because of the operation of § 362(c), there is no automatic stay in the instant case, and, as such, Movant may proceed with their tax sale. In the absence of clearer facts which support a finding of bad faith, the Court concludes that the statutory provisions limiting the presence of the automatic stay for repeat filers are adequate to prevent abuse.
APPEARANCES REQUIRED.
Debtor(s):
William Edward Wall Jr. Represented By Ronald W Ask
Movant(s):
Ronak N Patel Represented By Ronak N Patel
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT VW CREDIT INC SERV AGENT FOR VW CREDIT LEASING LTD
EH
Docket 27
10:00 AM
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
John Scott Hawkins Represented By Michael Jay Berger
Movant(s):
VW Credit, Inc., servicing agent for Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: FRPA TRUST
From: 6/5/18 EH
Docket 17
10:00 AM
Service is Proper Opposition: Yes
Pursuant to 11 U.S.C. § 362(c)(4), the automatic stay does not go into effect in a filed case if a debtor has two or more cases pending within the previous year. Here, Debtor had two Chapter 13 cases dismissed in the previous year for failure to file information. As a result, the automatic stay did not go into effect in the instant case.
Pursuant to 11 U.S.C. § 362(j), Movant is entitled to request an order confirming that no automatic stay went into effect in the instant case. Therefore, the Court will GRANT the motion, confirming that no automatic stay went into effect in the instant case. The Court notes that the assertions contained in Debtor’s opposition are entirely irrelevant to the request at issue.
The Court notes, however, that Debtor filed a motion to impose the automatic stay, which was continued until July 10, 2018. Movant should be aware that the comfort order to be issued by this Court does not preclude Debtor from later arguing that the automatic stay should or can be imposed in this case.
APPEARANCES REQUIRED.
Debtor(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson
Movant(s):
FRPA TRUST, its successors and/or Represented By
Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA dba WELLS FARGO DEALER SERV
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) because there is equity in the property. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Tyler Murdoch Represented By Kevin M Cortright
Joint Debtor(s):
Jennifer Murdoch Represented By Kevin M Cortright
10:00 AM
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Sheryl K Ith
Trustee(s):
Robert Whitmore (TR) Pro Se
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 16
- NONE LISTED -
Debtor(s):
Pedro Norlito Ibanez Represented By Alon Darvish
Joint Debtor(s):
Celia Singca Ibanez Represented By Alon Darvish
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: BANK OF NEW YORK MELLON
EH
Docket 20
Service is Proper Opposition: Yes
Pursuant to § 541, Debtor’s interest in her real property became property of the estate upon the commencement of the bankruptcy proceeding notwithstanding Debtor’s indication on her statement of intention that she intended to surrender the property.
Pursuant to Trustee’s opposition, Trustee believes that there is sufficient equity in the property for it to be administered and Trustee has begun taking steps to do so. As such, the Court is inclined to CONTINUE the hearing for Trustee to market the property.
APPEARANCES REQUIRED.
Debtor(s):
Heeyoung Lee Rhee Pro Se
10:00 AM
Movant(s):
Bayview Loan Servicing, LLC, as Represented By
Nancy L Lee
Trustee(s):
Larry D Simons (TR) Pro Se
MOVANT: BAYVIEW LOAN SERVICING LLC
EH
Docket 29
Service is Proper Opposition: Yes
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT request for relief from stay pursuant to § 362(d)(4) although the Court does not make a finding that Debtor was involved in the scheme. GRANT waiver of Rule 4001 stay. GRANT request under ¶ 2. DENY request to retain jurisdiction under ¶ 14 as moot.
Debtor’s response to the instant motion asserts that he was not aware of or not involved in any bad faith scheme. Movant in its motion, however, does not allege that Debtor was involved in the scheme, and Debtor’s involvement in the scheme is not necessary for relief under § 362(d)(4). Debtor also requests that any lockout be postponed until at least July 1, 2018. Pursuant to this Court’s practice of holding
10:00 AM
opposed orders for at least seven days after the order is lodged (Local Rule 9021-(1) (b)(1)(C)), it is probable that the instant order will not be entered until at least July 5, 2018.
APPEARANCES REQUIRED.
Debtor(s):
Derick Jones Pro Se
Movant(s):
BAYVIEW LOAN SERVICING, Represented By
Edward G Schloss
Trustee(s):
Karl T Anderson (TR) Pro Se
MOVANT: WHEELS FINANCIAL GROUP LLC
Also #12 EH
Docket 38
Service is Proper Opposition: None
10:00 AM
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shelley R. Long Represented By
James D. Hornbuckle
Movant(s):
Wheels Financial Group, LLC, dba Represented By
Sheryl D Noel
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: AJAX E MASTER TRUST I
Also #11 EH
Docket 40
10:00 AM
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2). GRANT waiver of Rule 4001(a)
(3) stay. GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shelley R. Long Represented By
James D. Hornbuckle
Movant(s):
Ajax E Master Trust I, a Delaware Represented By
James F Lewin Renee M Parker
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: DPM ACQUISITION LLC
EH
Docket 46
10:00 AM
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Movant(s):
DPM Acquisition, LLC Represented By Thomas R Mulally
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: BANK OF AMERICA
EH
10:00 AM
Docket 23
- NONE LISTED -
Debtor(s):
Hugo Sanchez Cruz Represented By
James Geoffrey Beirne
Movant(s):
BANK OF AMERICA, N.A. Represented By Alexander G Meissner Bonni S Mantovani
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: LAKEVIEW LOAN SERVICING LLC
From: 5/29/18 EH
Docket 33
05/29/2018
10:00 AM
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT as to ¶3 of prayer for relief. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Gary Ramirez Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Christina Faith Ramirez Represented By
Ethan Kiwhan Chin
Movant(s):
Lakeview Loan Servicing, LLC Represented By Mark S Krause
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 38
10:00 AM
Service is Proper Opposition: Yes
Parties to apprise Court of status of APO discussions. APPEARANCES REQUIRED.
Debtor(s):
William Richard Newborg Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Serina Rae Newborg Represented By
Ramiro Flores Munoz
Movant(s):
US Bank National Association Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 33
10:00 AM
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request for relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)
stay. GRANT requests under ¶¶ 2, 3 and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Romeo C. Torres Represented By Ryan A. Stubbe
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WELLS FARGO BANK
From: 3/20/18, 4/24/18, 5/29/18
10:00 AM
EH
Docket 54
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CHAMPION MORTGAGE COMPANY (NATIONSTAR MORTGAGE LLC, DBA)
EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Suzanne Berry Represented By Christopher Hewitt
Movant(s):
Champion Mortgage Company Represented By Ashlee Fogle Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
supporting declarations REAL PROPERTY RE: 40748 Pocona Place, Murrieta, California 92562
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 5/1/18, 5/29/18 EH
Docket 55
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Richard M. Orellano II Represented By Patricia M Ashcraft
Joint Debtor(s):
Tifany Orellano Represented By Patricia M Ashcraft
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WELLS FARGO BANK, N.A.
From: 5/15/18 EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Yelena Gurevich
10:00 AM
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt Jessica L Carter
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WELLS FARGO BANK
EH
Docket 38
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Yolanda Llamas Represented By
10:00 AM
Movant(s):
Rebecca Tomilowitz
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
From: 5/1/18, 6/5/18 EH
Docket 49
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
10:00 AM
Debtor(s):
Andrea Sindy Pozgaj Represented By Joel M Feinstein
Movant(s):
Wilmington Savings Fund Society, Represented By
Darlene C Vigil Melissa A Vermillion
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: WELLS FARGO BANK, N.A.
From: 5/29/18 EH
Docket 41
05/29/2018
Service: Proper Opposition: Yes
Parties to provide status of cure and settlement discussions. APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Marianne Bowers Represented By Thomas B Ure
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
MOVANT: TING QIN
CASE DISMISSED 6/20/18
EH
Docket 8
Service is Proper Opposition: None
Debtor’s bankruptcy case was dismissed on June 20, 2018. As such the automatic stay has expired pursuant to § 362(c). Therefore, the Court will DENY as moot the requests under ¶¶ 1 and 2. Based on the skeletal bankruptcy filing, the Court is inclined to GRANT the in rem request under ¶ 9 upon recording of a copy of this
10:00 AM
order or giving appropriate notice of its entry in compliance with applicable nonbankruptcy law.
APPEARANCES REQUIRED.
Debtor(s):
Uman Bracote Pro Se
Movant(s):
Ting Qin Represented By
William E Windham
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: ALEXANDER TOFICK DAVID
EH
Docket 31
- NONE LISTED -
Debtor(s):
Alexander Tofick David Represented By Brad Weil
Movant(s):
Alexander Tofick David Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
EH
Docket 4
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 11 voluntary petition.
On May 1, 2018, Zamucen & Current LLP ("Plaintiff") filed a complaint against Debtor for non-dischargeability pursuant to § 523(a)(5) and (15). On May 31, 2018, Debtor filed a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. Rule 12(b)(6). On June 12, 2018, Plaintiff filed its opposition.
Plaintiff served as a CAL. EVID. CODE § 730 expert during Debtor’s dissolution proceedings, and evaluated Debtor and Joana Johnson’s ("Joana") financial situation. According to Plaintiff:
[A]s a form of support, the Court ordered Vance Zachary Johnson to pay all of Zamucen & Curren, LLP’s fees and costs, to be paid directly to Zamucen & Curren, LLP. These funds were to reimburse Defendant’s spouse, Joana
2:00 PM
Johnson, for fees, costs and other expenses incurred in this dissolution of marriage action due to Defendant’s intransigence in that divorce case regarding discovery and on Ms. Johnson’s Order to Show Cause for modification of spousal support and child support and for attorney fees and costs.
[Dkt. No. 1, pg. 2, 15-24].
Debtor argues that Plaintiff’s characterization its fees and costs as in the nature of support is a legal conclusion not supported by the record, and, alternatively, that the debt does not constitute a domestic support obligation under § 523(a)(5), nor is it owed to Debtor’s spouse, former spouse, or child pursuant to § 523(a)(15).
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
NON-DISCHARGEABILITY
2:00 PM
11 U.S.C. § 523(a)(5) and (15) state:
A discharge under section 727, 1141, 1228(a), or 1328(b) of this title does not discharge an individual debtor from any debt –
(5) for domestic support obligation;
(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;
As a preliminary matter, the Court notes that the BAPCPA revisions to the operation of § 523(a)(15) render the determination of whether Plaintiff’s claim is in the nature of support irrelevant in the instant case. See, e.g., 4 COLLIER’S ON BANKRUPTCY ¶
523.23 (16th ed. 2009) ("Thus, in individual cases under chapters 7 and 11 and in cases under chapter 12, all of which base dischargeability on the subsections of section 523(a), the distinction between a domestic support obligation and other types of obligations arising out of a marital relationship is of no practical consequence in determining the dischargeability of the debt."). The operative question is whether Plaintiff, as a matter of law, has the ability to bring a non-dischargeability action despite not being the "spouse, former spouse, or child of the debtor."
Despite the fact that the plain language of the statute appears to impose a requirement that the underlying debt be owed to a "spouse, former spouse, or child of the debtor," there is extensive case law permitting third-party professionals (primarily attorneys) to whom a debtor was ordered to make payment to bring a non-dischargeability complaint under either § 523(a)(5) or § 523(a)(15). See, e.g., In re Williams, 703 F.2d 1055, 1056-57 (8th Cir. 1983); In re Catlow, 663 F.2d 960, 62-63 (9th Cir. 1981). As
noted by the Ninth Circuit, pre-BAPCPA, in the context of § 523(a)(5):
2:00 PM
Fees paid to third parties on behalf of a child or former spouse can be as much for . . . support as payments made directly to the former spouse or child. We hold in the instant case that the identity of the payee is less important than the nature of the debt. . . .
Every circuit to consider this precise issue has held likewise.
In re Chang, 163 F.3d 1138, 1141 (9th Cir. 1998).
Debtor has acknowledged this fact and attempted to distinguish between attorneys’ fees and experts’ fees by arguing that "[t]he benefit of the award of attorney’s fees, even when paid directly to an attorney who was hired by a party in family law proceeding, is more easily traceable to an ex-spouse’s reimbursement and benefit than a § 730 expert appointed directly by the court." [Dkt. No. 8, pg. 3, lines 21-24]. The Court is unconvinced that paying, on behalf of an ex-spouse, a sum of "X" dollars is more beneficial when the recipient is an attorney rather than an expert. In both circumstances, the ex-spouse has benefitted, and been reimbursed, in the amount of "X" dollars.
The Bankruptcy Appellate Panel recently summarized the case law extending standing to professionals involved in family proceedings, and concluded that:
One thing is clear from all of these cases. Even when the debt was not directly payable or owed to the spouse, former spouse or child of the debtor, the bounty of that debt had flowed to one of those family members explicitly covered by the statute, or the discharge of the debt would have adversely impacted the finances of one of those explicitly-covered family members.
In re Gunness, 505 B.R. 1, 6 (B.A.P. 9th Cir. 2014) (collecting cases). Here, Joana and
2:00 PM
Debtor executed a retainer agreement, contractually binding them to pay the fees and costs of Plaintiff. Either the state court’s order that Debtor pay the entirety of the fees released Joana from contractual liability on the retainer agreement, in which case that award clearly flowed to the benefit of a spouse/former spouse, or Plaintiff is still entitled to collect fees directly from Joana (who may then have a right of contribution from Debtor), in which case the discharge of the debt would adversely impact the finances of a spouse/former spouse. In either case, this situation falls under the well- established case law standard which permits third party professionals to bring non- dischargeability proceedings under §§ 523(a)(5) and (15).
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
2:00 PM
Plaintiff(s):
Zamucen & Curren LLP Represented By Patricia J Grace
Also #27 & #28 EH
Docket 74
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 11 voluntary petition. Debtor has not yet proposed a Chapter 11 plan.
On May 24, 2018, Debtor’s ex-wife, Joana Johnson ("Joana"), filed a motion to dismiss for failure to pay post-petition domestic support obligations under 11 U.S.C. § 1112(b)(1) and (b)(4)(P) ("Dismissal Motion"). On June 5, 2018, Debtor filed a motion to convert case to Chapter 7 ("Conversion Motion"). On June 12, 2018, Debtor filed opposition to Joana’s motion to dismiss, and Joana filed opposition to Debtor’s motion to convert.
2:00 PM
The first determination the Court must make is whether the Dismissal Motion or Conversion Motion should be considered in a certain order. Clearly, if the Dismissal Motion is granted, the Conversion Motion becomes moot. Additionally, if the Conversion Motion is granted, the Dismissal Motion becomes moot because it is a motion to dismiss a Chapter 11 case and is based on a statutory provision (§ 1112(b)) applicable only to Chapter 11 cases.
11 U.S.C. § 1112(a) states:
The debtor may convert a case under this chapter to a case under chapter 7 of this title unless –
the debtor is not a debtor in possession;
the case was originally commenced as an involuntary case under this chapter; or
the case was converted to a case under this chapter other than on the debtor’s request.
Joana argues that: "When a motion to dismiss pursuant to § 1112(b) and motion to convert pursuant to § 1112(a) are pending, courts read subsections (a) and (b) together, requiring the court to engage in the two-step analysis required by § 1112(b), first determining whether cause exists to dismiss or convert and then determining whether dismissing or converting is in the best interest of creditors. [Dkt. No. 77, pg.4, 18-21]. The Court notes that the analysis suggested by Joana does not constitute reading subsections (a) and (b) together, but, rather, it constitutes ignoring § 1112(a) and simply applying § 1112(b).
2:00 PM
Joana primarily cites In re Adler, 329 B.R. 406, (Bankr. S.D. N.Y. 2005) in support of her argument. The bankruptcy court declined to allow the debtor to convert to Chapter 7 on the basis of bad faith, found cause to dismiss under § 1112(b), and, ultimately, dismissed the case.
The Court notes that bankruptcy courts have commonly referred to an "absolute" right of conversion when such right is not truly absolute. See generally 7 COLLIER ON BANKRUPTCY ¶ 1112.02 (16th ed. 2017) ("Section 1112(a) appears to give the debtor an absolute right to convert a chapter 11 case to a case under chapter 7, provided that none of three limited exceptions apply."); GINSBERG & MARTIN § 13.17 (5th ed. 2018) (absolute right if eligible and exceptions inapplicable). Post-Marrama, it is more accurate to say a Debtor has an absolute right to convert to Chapter 7 if the statutory exceptions are inapplicable and if the debtor is eligible to be a Chapter 7 debtor.
Specifically, Marrama stated the following:
There are at least two possible reasons why Marrama may not qualify as such a debtor, one arising under § 109(e) of the Code, and the other turning on the construction of the word "cause" in § 1307(c). The former provision imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13 relief. More pertinently, the latter provision, § 1307(c), provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding "for cause" and includes a nonexclusive list of 10 causes justifying that relief. In practical effect, a ruling that an individual’s
Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of "honest but unfortunate debtor[s]" that the bankruptcy laws were enacted to protect. The text of § 706(d) therefore provides adequate authority of the denial of his motion to convert.
Marrama v. Citizens Bank of Mass., 549 U.S. 365, 373-74 (2007). While Marrama considered a Chapter 7 case, in which § 706(d) provides the applicable eligibility provision, § 1112(f) contains the same eligibility restriction in the context of a Chapter 11 case. 11 U.S.C. § 1112(f) ("Notwithstanding any other provision of this
2:00 PM
section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter."). Importantly, the Supreme Court in Marrama made clear that if there is cause for immediate re-conversion (or dismissal) of the converted case, then the debtor should not be considered to be eligible for that chapter. Marrama, 549 U.S. at 375 ("On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate ‘to prevent an abuse of process’ described in § 105(a) of the Code, is surely adequate to authorize an immediate denial of a motion to convert filed under § 706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.").
Therefore, as outlined above, the Court is authorized, but not required, to utilize § 105(a) and § 1112(f) to deny conversion if there is cause for dismissal (or reconversion) of the case under § 707. See generally, In re Kimrow, Inc., 534 B.R. 219, 225-26 (Bankr. M.D. Ga. 2015). Joana argues that Debtor’s failure to pay postpetition domestic obligations constitutes bad faith. First of all, the Court notes that there previously was a circuit split concerning whether bad faith was grounds to dismiss a Chapter 7 petition. See In re Zick, 931 F.2d 1124 (6th Cir. 1991) and In re Tamecki, 229 F.3d 205 (3rd Cir. 2000) (bad faith constitutes grounds for dismissal).
But see In re Huckfeldt, 39 F.3d 829 (8th Cir. 1994) and In re Padilla, 222 F.3d 1184 (9th Cir. 2000) (bad faith not separate grounds for dismissal). Eventually, Congress amended § 707(b)(3)(A) which instructs the Court to consider bad faith in certain circumstances. Those circumstances, however, are not presently before the Court in the form of a properly briefed motion to dismiss pursuant to § 707(b).
Furthermore, the Court declines to conclude that Joana has demonstrated "cause" for dismissal of a Chapter 7 petition pursuant to § 707(a). Joana has not pointed to any case law or legal rationale supporting the conclusion that failure to pay postpetition domestic support obligations is cause for dismissal of a Chapter 7 petition. While the reorganization chapters contain express provisions which provide for dismissal upon the failure to pay postpetition domestic support obligations, Chapter 7 does not contain such a provision. See 11 U.S.C. § 1112(b)(4)(P) and 11 U.S.C. § 1307(c)(11).
Finally, the Court is cognizant of the fact that Joana may wish to argue why there is cause for dismissal pursuant to § 707(a) or (b). Given that this issue was not raised in the pleadings before the Court, the Court will not consider such new arguments at this
2:00 PM
time.
Debtor, having filed a motion pursuant to § 1112(a), none of the statutory exceptions to conversion being applicable, and no party having demonstrated that Debtor is ineligible to be a debtor under Chapter 7 pursuant to § 1112(f) and § 707, the Court is inclined to CONVERT the case to Chapter 7.
APPEARANCES REQUIRED.
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Movant(s):
Vance Zachary Johnson Represented By Robert P Goe
Also #26 & #28 EH
Docket 70
2:00 PM
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 11 voluntary petition. Debtor has not yet proposed a Chapter 11 plan.
On May 24, 2018, Debtor’s ex-wife, Joana Johnson ("Joana"), filed a motion to dismiss for failure to pay post-petition domestic support obligations under 11 U.S.C. § 1112(b)(1) and (b)(4)(P) ("Dismissal Motion"). On June 5, 2018, Debtor filed a motion to convert case to Chapter 7 ("Conversion Motion"). On June 12, 2018, Debtor filed opposition to Joana’s motion to dismiss, and Joana filed opposition to Debtor’s motion to convert.
The first determination the Court must make is whether the Dismissal Motion or Conversion Motion should be considered in a certain order. Clearly, if the Dismissal Motion is granted, the Conversion Motion becomes moot. Additionally, if the Conversion Motion is granted, the Dismissal Motion becomes moot because it is a motion to dismiss a Chapter 11 case and is based on a statutory provision (§ 1112(b)) applicable only to Chapter 11 cases.
11 U.S.C. § 1112(a) states:
2:00 PM
The debtor may convert a case under this chapter to a case under chapter 7 of this title unless –
the debtor is not a debtor in possession;
the case was originally commenced as an involuntary case under this chapter; or
the case was converted to a case under this chapter other than on the debtor’s request.
Joana argues that: "When a motion to dismiss pursuant to § 1112(b) and motion to convert pursuant to § 1112(a) are pending, courts read subsections (a) and (b) together, requiring the court to engage in the two-step analysis required by § 1112(b), first determining whether cause exists to dismiss or convert and then determining whether dismissing or converting is in the best interest of creditors. [Dkt. No. 77, pg.4, 18-21]. The Court notes that the analysis suggested by Joana does not constitute reading subsections (a) and (b) together, but, rather, it constitutes ignoring § 1112(a) and simply applying § 1112(b).
Joana primarily cites In re Adler, 329 B.R. 406, (Bankr. S.D. N.Y. 2005) in support of her argument. The bankruptcy court declined to allow the debtor to convert to Chapter 7 on the basis of bad faith, found cause to dismiss under § 1112(b), and, ultimately, dismissed the case.
The Court notes that bankruptcy courts have commonly referred to an "absolute" right of conversion when such right is not truly absolute. See generally 7 COLLIER ON BANKRUPTCY ¶ 1112.02 (16th ed. 2017) ("Section 1112(a) appears to give the debtor an absolute right to convert a chapter 11 case to a case under chapter 7, provided that none of three limited exceptions apply."); GINSBERG & MARTIN § 13.17 (5th ed. 2018) (absolute right if eligible and exceptions inapplicable). Post-Marrama, it is more accurate to say a Debtor has an absolute right to convert to Chapter 7 if the statutory exceptions are inapplicable and if the debtor is eligible to be a Chapter 7 debtor.
Specifically, Marrama stated the following:
2:00 PM
There are at least two possible reasons why Marrama may not qualify as such a debtor, one arising under § 109(e) of the Code, and the other turning on the construction of the word "cause" in § 1307(c). The former provision imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13 relief. More pertinently, the latter provision, § 1307(c), provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding "for cause" and includes a nonexclusive list of 10 causes justifying that relief. In practical effect, a ruling that an individual’s
Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of "honest but unfortunate debtor[s]" that the bankruptcy laws were enacted to protect. The text of § 706(d) therefore provides adequate authority of the denial of his motion to convert.
Marrama v. Citizens Bank of Mass., 549 U.S. 365, 373-74 (2007). While Marrama considered a Chapter 7 case, in which § 706(d) provides the applicable eligibility provision, § 1112(f) contains the same eligibility restriction in the context of a Chapter 11 case. 11 U.S.C. § 1112(f) ("Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter."). Importantly, the Supreme Court in Marrama made clear that if there is cause for immediate re-conversion (or dismissal) of the converted case, then the debtor should not be considered to be eligible for that chapter. Marrama, 549 U.S. at 375 ("On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate ‘to prevent an abuse of process’ described in § 105(a) of the Code, is surely adequate to authorize an immediate denial of a motion to convert filed under § 706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.").
Therefore, as outlined above, the Court is authorized, but not required, to utilize § 105(a) and § 1112(f) to deny conversion if there is cause for dismissal (or reconversion) of the case under § 707. See generally, In re Kimrow, Inc., 534 B.R. 219, 225-26 (Bankr. M.D. Ga. 2015). Joana argues that Debtor’s failure to pay
2:00 PM
postpetition domestic obligations constitutes bad faith. First of all, the Court notes that there previously was a circuit split concerning whether bad faith was grounds to dismiss a Chapter 7 petition. See In re Zick, 931 F.2d 1124 (6th Cir. 1991) and In re Tamecki, 229 F.3d 205 (3rd Cir. 2000) (bad faith constitutes grounds for dismissal).
But see In re Huckfeldt, 39 F.3d 829 (8th Cir. 1994) and In re Padilla, 222 F.3d 1184 (9th Cir. 2000) (bad faith not separate grounds for dismissal). Eventually, Congress amended § 707(b)(3)(A) which instructs the Court to consider bad faith in certain circumstances. Those circumstances, however, are not presently before the Court in the form of a properly briefed motion to dismiss pursuant to § 707(b).
Furthermore, the Court declines to conclude that Joana has demonstrated "cause" for dismissal of a Chapter 7 petition pursuant to § 707(a). Joana has not pointed to any case law or legal rationale supporting the conclusion that failure to pay postpetition domestic support obligations is cause for dismissal of a Chapter 7 petition. While the reorganization chapters contain express provisions which provide for dismissal upon the failure to pay postpetition domestic support obligations, Chapter 7 does not contain such a provision. See 11 U.S.C. § 1112(b)(4)(P) and 11 U.S.C. § 1307(c)(11).
Finally, the Court is cognizant of the fact that Joana may wish to argue why there is cause for dismissal pursuant to § 707(a) or (b). Given that this issue was not raised in the pleadings before the Court, the Court will not consider such new arguments at this time.
Debtor, having filed a motion pursuant to § 1112(a), none of the statutory exceptions to conversion being applicable, and no party having demonstrated that Debtor is ineligible to be a debtor under Chapter 7 pursuant to § 1112(f) and § 707, the Court is inclined to CONVERT the case to Chapter 7.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Movant(s):
Joana Johnson Represented By Scott Talkov
From: 3/6/18, 4/24/18 Also #26 & #27
EH
Docket 7
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
2:00 PM
Also #30 EH
Docket 4
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Movant(s):
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
2:00 PM
Anthony Boyd against U.S. BANK, SPECIALIZED LOAN SERVICING LLC,
Series 2007-FFC First Franklin Mortgage Loan Trust. (Charge To Estate). (Attachments: # 1 Exhibit Exhibits to Complaint # 2 Exhibit Exhibits to Complaint # 3 Exhibit Exhibits to Complaint # 4 Exhibit Exhibits to Complaint # 5 Exhibit Exhibits to Complaint # 6 Exhibit Exhibits to Complaint # 7 Exhibit Exhibits to Complaint) Nature of Suit: (21 (Validity, priority or extent of lien or other interest in property)),(14 (Recovery of money/property - other)),(91 (Declaratory judgment)) (Gebelt, Nicholas)
Also #29 EH
Docket 1
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
HOLDING DATE
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18
Also #34 EH
Docket 83
- NONE LISTED -
2:00 PM
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18
Also #33 EH
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By
2:00 PM
Trustee(s):
Alan W Forsley
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
EH
Docket 173
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
United States Trustee (RS) Represented By Everett L Green
2:00 PM
Also #35 & #37 EH
Docket 228
BACKGROUND
Integrated Wealth Management, Inc. ("Debtor"), is a non-operating advisory and wealth management firm. The case was filed via involuntary petition on July 12, 2017. On January 10, 2018, the Court entered its order directing entry of the Order for Relief retroactive to January 4, 2018. On January 5, 2018, the case was converted to a case under chapter 11. St. Jude Heritage Medical Group is the Debtor’s largest creditor, asserting a disputed general unsecured claim against the Debtor in the amount of 12.5 million. The Debtor estimates that Allowed General Unsecured Claims will receive an estimated 25.2% to 100% distribution.
On April 30, 2018, the Court approved the Debtor’s Second Amended Disclosure Statement, finding that it provided adequate information. Since that date, the Debtor has filed a Motion to Approve Non-Material Modifications to the Second Amended Plan which this Court has approved. The Debtor now moves this Court for confirmation of its Third Amended Plan. Service of the Plan Documents was proper and no objection to confirmation has been filed.
DISCUSSION
The debtor carries the burden of proving that a Chapter 11 plan complies with the statutory requirements for confirmation under §§ 1129(a) & (b). In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). The debtor must show that the plan is confirmable by a preponderance of the evidence. See id. at 654; see also In re Monarch Beach Venture, Ltd.,166 B.R. 428 (C.D.Cal.1993).
Ballot Results:
The Debtors timely transmitted the Plan and Disclosure Statement to all known Persons who hold Claims and Interests that are impaired under the Plan and who are
2:00 PM
therefore entitled to vote on the Plan. The Debtors received (3) three timely ballots. The votes were tallied as follows:
Class 1 Allowed Secured Claims: N/A - unimpaired
Class 2 Allowed Priority Non-Tax Claims: N/A - unimpaired
Class 3 Allowed General Unsecured Claims: 100% voted in favor of the plan and constituted 100% of claims filed.
Class 4: Allowed Subordinated Claims – No ballots received.
Class 5: Interest Holders: 100% voted in favor of the plan
A court can confirm a plan without resort to cram down if all impaired classes accept the plan. Here, all impaired classes have accepted the plan. Thus, cramdown is not required.
Confirmation Requirements under 11 U.S.C. §1129(a)
The Plan addresses the requirements of Bankruptcy Code 1129(a) as follows:
11 U.S.C. § 1129(a)(1): The Plan complies with all of the applicable provisions of the Bankruptcy Code, including sections 1122 and 1123.
11 U.S.C. § 1129(a)(2): The Debtor has complied with all of the Bankruptcy Code's applicable provisions.
11 U.S.C. § 1129(a)(3): Good faith in proposing a plan of reorganization is assessed by the bankruptcy judge and viewed under the totality of the circumstances. In re Jorgensen, 66 B.R. 104, 108-109 (9th Cir. BAP 1986). Good faith requires that a plan will achieve a result consistent with the objectives and purposes of the Code. Jorgensen, 66 B.R. at 109. It also requires a fundamental fairness in dealing with one's creditors. Id. The bankruptcy judge is in the best position to assess the good faith of the parties. Id. Here, the terms of the plan, the conduct of the debtor and debtor's counsel in attempting to negotiate a loan modification and to negotiate with creditors throughout the Bankruptcy proceedings evidences that the plan is being proposed in good faith. See In re Madison Hotel Associates, 749 F.2d 410, 425 (7th Cir. 1984). Here, having received no objections to confirmation, the Court finds that the Third Amended Plan has been proposed in good faith pursuant to FRBP 3020(b)(2).
11 U.S.C. § 1129(a)(4): The Plan provides that the reorganized Debtors may only
2:00 PM
pay Professional Fees upon application and approval by the Bankruptcy Court. (Section 3.1). This provision satisfies the Bankruptcy Code's requirement that payments for services or for costs and expenses in or in connection with a case, or in connection with a plan and incident to a case, must be approved by, or subject to the approval of, the Court as reasonable.
11 U.S.C. § 1129(a)(5): The compensation and terms of retention of Mr. Issa as Plan Agent, including his specific duties, have been fully disclosed. This requirement is satisfied.
11 U.S.C. § 1129(a)(6): does not apply to the instant case.
11 U.S.C. § 1129(a)(7): Each Person who holds a Claim or Interest in a Class that is impaired under the Plan either: (a) has accepted the Plan; or (b) will receive or retain under the Plan property of a value, as of the Effective Date, that is not less than that Person would receive or retain if the Debtor were liquidated under chapter 7 of the Bankruptcy Code. The Debtor has demonstrated that all impaired interest holders have both accepted the plan, and will likely receive or retain under the Plan value that is not less than they would receive under a chapter 7 liquidation.
11 U.S.C. § 1129(a)(8): Section 1129(a)(8) requires unanimity of all classes to consensually confirm a plan. That is, each impaired class must have affirmatively accepted the plan. The Ballot Tally above indicates that this requirement is satisfied because all impaired classes have affirmatively accepted the plan.
11 U.S.C. § 1129(a)(9): Section 1129(a)(9)(A) requires that holders of administrative claims and gap claims be paid "cash equal to the allowed amount of such claim" on the "effective date of the plan," unless the holder of a particular claim agrees to different treatment. Here, Section 3.1 regarding Administrative Claims, Section 3.2 regarding Priority Tax Claims, and Section 5.2 regarding Allowed Priority Non-Tax Claims satisfy this requirement.
11 U.S.C. § 1129(a)(10): This provision requires at least one class of claims that is impaired accept the plan. Class 3 has voted to accept the plan. Thus, this requirement is satisfied.
2:00 PM
11 U.S.C. § 1129(a)(11): Plan confirmation is not likely to be followed by either the liquidation or the further financial reorganization of the Reorganized Debtors or any successor to the Reorganized Debtors. The Issa Declaration at ¶¶ 28-32 provides sufficient evidence that the Debtor will have sufficient funds on the Effective Date to pay Administrative Claims, US Trustee Fees, Allowed Gap Claims, Allowed Priority Tax Claims, and Class 4 Non-Tax Claims. As the business is no longer operating, payment of Class 3 claims will depend on objections to claims, and any potential recovery from prosecution of causes of action. As such, the Court finds this requirement is satisfied.
11 U.S.C. § 1129(a)(12): The treatment of Administrative Claims under the Plan satisfies the requirement of Bankruptcy Code section 1129(a)(12).
11 U.S.C. § 1129(a)(13): does not apply to the instant case.
11 U.S.C. § 1129(a)(14): does not apply to the instant case.
11 U.S.C. § 1129(a)(15): does not apply to the instant case.
11 U.S.C. § 1129(a)(16): does not apply to the instant case.
TENTATIVE RULING
As set forth above, the Debtor’s Third Amended Plan complies with the requirements of section 1129. The Court is inclined to order confirmation.
APPEARANCES REQUIRED.
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
From: 2/6/18, 2/13/18, 3/6/18, 3/20/18, 4/24/18 Also #35 & #36
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
EH
Docket 287
- NONE LISTED -
2:00 PM
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
United States Trustee (RS) Represented By Everett L Green
EH
Docket 302
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
EH
Docket 299
On December 1, 2017, Auto Strap Transport, LLC ("Debtor") filed a voluntary chapter 11 petition. At the Status Conference on January 9, 2018, the Court set a deadline of March 26, 2018 for the Debtor to file the Chapter 11 plan and disclosure statement. On March 8, 2018, the Court extended this deadline to June 30, 2018.
The appointment of Stephen Douglass, the Chief Restructuring Officer ("CRO"), has created significant progress towards stabilization, as the company has reduced employees, consolidated financial records, updated recordkeeping and downsizing truck fleet. Debtor is also exploring options for sale of assets to escape from Chapter 11. However, the Debtor is not yet in position to file a confirmable Chapter 11 plan by the June 30, 2018 deadline.
This motion ("Motion") asks the court to extend the deadline to August 31, 2018, alleging that the CRO will be able to solve cash flow and business stabilization issues by this date.
11 U.S.C. § 1121(d)(1) allows for the court to reduce or increase the 120-day period for filing a plan or the 180-day period for a plan to be accepted if there is sufficient cause for an extension. Section 1121(2)(a) disallows the 120-day period to be extended after 18 months from the order of relief, while (2)(b) disallows the 180- day period to be extended after 20 months from the order of relief.
When determining if sufficient cause has been found for extending a Chapter
2:00 PM
11 deadline, a Court weighs numerous factors:
the size of debtor
the needs of the creditors
good faith towards reorganization
existence of unresolved contingency
debtor’s payment of bills
previous extensions
breakdowns in negotiations
debtor’s failure to resolve reorganization matters
any gross mismanagement of the debtor
In re Hoffinger Industries, Inc., 292 B.R. 639 (8th Cir. BAP 2003).
"Good faith is lacking only when the debtor's actions are a clear abuse of the bankruptcy process." In re Arnold, 806 F.2d 937, 939 (9th Cir. 1986). There is no abuse of the bankruptcy process when debtors are using assets productively to repay creditors while the stay is in place. Id.
Here, the record reflects that Debtor has previously sought approval to extend the deadline once and is currently seeking a second extension of the deadline to allow the CRO to resolve cash flow issues and stabilize the Debtor’s business. The extension is proper pursuant to the requirements under Section 1121(2). The other remaining factors do not adequately compel the court to deny the motion.
Further, failure to file an opposition may be deemed consent to the relief requested. LBR 9013-1(h).
Based on the foregoing, the Court’s tentative ruling is to GRANT the Motion to the extent that the deadline to file a disclosure statement and plan will be extended to August 31, 2018.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Also #38 - #40
EH
Docket 293
Analysis: Pursuant to 11 U.S.C. § 330(a)(1), the court may award reasonable compensation for actual, necessary services. The court has an independent duty to review the fee application in the absence of objections. 11 U.S.C. § 330(a)(2) (2005). The court "will not indulge in extensive labor and guesswork to justify a fee for an attorney who has not done so himself." In re Taylor, 66 B.R. 390 (Bankr. W.D. Pa. 1986).
11 U.S.C. § 330(a)(3) provides factors to be considered in determining the reasonableness of requested compensation. These factors include time spent, rates
2:00 PM
charged, necessity of the service, reasonableness of the service, expertise of attorney, and comparable market rates.
The Applicant’s terms of billing hold that he will be compensated based on an hourly basis, subject to Court approval. The Applicant requests allowance and payment of $103,747.50, consisting of 420 hours of billed time. The Applicant requests an additional $703.79 for advanced costs, and therefore requests a total of
$104,451.29.
Counsel requests fees for the following:
Meeting of Creditors – 2.6 hours - $400.00 ($154 per hour)
Case Administration – 119.8 hours - $26,155.00 ($218 per hour)
Relief from Stay/Adequate Protection – 80.3 hours - $25,060.00 ($312 per hour)
Employment/Fee Applications – 13.6 hours - $2,567.50 ($189 per hour)
Business Operations – 65.5 hours - $18,435.00 ($281 per hour)
6) Financing – 59.4 hours - $18,387.50 ($310 per hour)
Claims Administration & Objections – 10.6 hours - $1,655.00 ($156 per hour)
Plan and Disclosure Statements – 10.3 hours – $1,952.50 ($190 per hour)
Cash Collateral Motion – 57.9 hours - $9,135.00 ($158 per hour)
The Court notes that there are numerous entries that appear to be excessive under the circumstances, are vague, are unnecessary, or are simply implausible. The Court notes the following representative list of problematic entries:
Vague:
This is vague as to what was actually communicated for an hour. "Case and other issues" could mean anything remotely related to the case. Further, an hour of communication for $500 seems excessive.
2:00 PM
debtor re insurance and other issues" (1 hour, $500.00)
Similar to the entry above, "insurance and other issues" is vague and applies to any subject marginally relevant to the case. Further, a conversation about insurance for an hour seems excessive, as does a
$500 charge for an hour-long conversation.
It is unclear what the Applicant means when reviewing multiple emails and versions of a motion to appoint a CRO. Further, reviewing emails and versions of a motion for 2.1 hours is arguably excessive, as well as the $840 charge. This also appears to be lumping; the revisions to the motion and the review of emails are separate tasks.
It is unclear what "communications" were made regarding the Stip to offset claims. More context would help to determine whether one hour at $500.00 is appropriate for "communications".
It is unclear what reviewing and revising a list of truck and trailers would entail, especially when the list is provided by the client. The charge of $560 for 1.4 hours of reviewing and revising appears excessive.
2:00 PM
counsel re adequate protection" (2.6 hours, $1,040.00)
This appears to be lumping, and it is unclear what specific work was done here. Emails, a phone call, and a stipulation review for 2.6 hours seems excessive.
"Multiple emails" with "multiple creditors" about adequate protection payments is vague.
"Additional work" is not specific on what exactly was performed here. Further, the Applicant does not list the various creditors or the work specifically done (such as reviewing, drafting, sending, communicating, etc.).
"Further work" is similarly not specific to what was actually done on the financing motion. Also, the time entries are lumpted. The 6.6 hours and $2,640 charged for "further work" is excessive in this context.
2:00 PM
Counsel" (1.9 hours, $760.00) (total: 3.8 hours, $1,520.00)
This appears to be lumping as well as unclear. Reviewing the draft and the motions should be separate from making calls and reviewing emails. Further, the communication with Todd about the DIP financing appears repetitive and excessive.
Excessive:
a. Case Administration 12/4/17, 12/5/17, 12/6/17 (Ex. 1 at 2) - "Additional revisions to balance of schedules" (3 hours, $525.00) and "review and revise schedules, including detailed email to client re info for tomorrow" (2.4 hours, $960.00) and "more revisions to balance of schedules (3 hours, $525.00) (total: 8.4 hours, $2010.00)
Over 8 hours and $2,010 to make revisions to the balance of schedules appears excessive.
$1,800.00) and "Emails to and from various creditors re AP stips; emails to & from client re vehicles retaining or surrendering; review of loan documents" (1.8 hours, $720.00) and "Emails and phone calls with multiple creditors re AP stips and payments" (0.9 hours, $360.00) (total: 7.2 hours, $2,880.00)
While there is lumping with the first entry, Applicant spent over 7 hours and almost $3,000 emailing and calling creditors.
Spending 6 hours in one day on ambiguous "revisions" to a motion, and charging $2,400, appears excessive
2:00 PM
d. Business Operations 3/15/18, 3/16/18, 3/18/18 and 3/20/18 (Ex. 1 at 28) – "Begin review and revisions to January MOR" (3 hours, $1,200) and "Revisions to December and January MORs" (5.3 hours,
$2,120.00) and "Finish revising December and January MORs" (1.6 hours, $640.00) and "Further review and revision to MORs" (0.7 hours,
$280.00) (total: 10.6 hours, $4,240.00)
These four tasks seem to say the same thing: the MORs were reviewed and revised. Considering this, 10.6 hours for such a task and over
$4,200 billed appears excessive.
$1,120.00) and "Further work on financial motion Phone calls with court, Nations, client & insurance agent" (4.3 hours, $1,720.00) and "Significant revisions to motion to incur debt including changing to add motion for authority to make case collateral expenditure for the down payment. Includes conference call with Mike and Richard re current terms. Email to Mike and Rich re details and declarations; revisions to budget with client approval; emails with Nations NY attorneys. Also include significant revisions to application for order shortening time" (6.6 hours, $2,640.00) (total: 13.7 hours, $5,440.00)
These entries suffer from significant lumping, as phone calls with the relevant parties and the Court are billed with drafting and revising the motion. 14 hours on the motion and almost $5,500 appears excessive.
2:00 PM
Email to all parties for review" (2.9 hours, $1,160.00) (total: 7.8 hours,
$3,120.00)
Lumping and 5 hours at almost $2,000 to revise a stipulation and make conference calls and send emails appears excessive. There were even more revisions and emails sent out after the first entry, which total up to $3,100 and almost 8 hours.
Lumping
While this item is a good example of lumping, there were many lumping examples scattered throughout the records. Here, it is hard to tell how much time was dedicated to each task, and grouping higher paying uses of time with lower ones creates ambiguity.
$2,160.00)
Lumping.
The total of all listed items is $31,270.00. The above entries do not constitute an exhaustive list of the problematic entries.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
EH
Docket 303
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
11:00 AM
Docket 107
06/27/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 14,667.33 |
Trustee Expenses: | $ 422.75 |
Attorney Fees: | $16,925.39 (per Stipulation with the UST) |
Attorney Costs: | $861.45 |
Accountant Fees: | $1,668 |
Accountant Costs: | $251.50 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
AMANDO MORALES Represented By William D Gurney
11:00 AM
Joint Debtor(s):
ALICIA MALDONADO JIMENEZ Represented By
William D Gurney
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander Lynda T Bui
11:00 AM
EH
Docket 10
6/27/18
BACKGROUND
On May 22, 2018, Hector Comparan Sarabia ("Debtor" or "Defendant") filed for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee").
The Trustee alleges that on or around May 24, 2018, he was notified by Wells Fargo that there was an account under Debtor’s name with approximately $64,313.33 on that date.
The 341(a) meeting was scheduled for June 26, 2018, but Trustee, not Debtor, filed this motion to extend time to file case opening documents ("Motion") on June 6, 2018.The Trustee is requesting an extension to July 10, 2018, in order to determine whether there are non-exempt assets to pay creditors. Trustee asserts that an extension would be in the creditors’ best interests.
As of June 21, 2018, there has been no objection to this Motion by the Debtor.
DISCUSSION
The court has broad discretion in supervising litigation. Irving v. Cty. of Sacramento, 231 F. App'x 584, 585 (9th Cir. 2007). The bankruptcy judge has the authority to grant an extension, and may do so when it is within their equitable discretion. See In re Davies, 96 F.Supp. 416, 419-420 (W.D. Va. 1949).
Pursuant to LBR 1007-1(b)(1), the requirements for a motion for an extension of time to file schedules, statements, and other documents is that it must (A) identify the date petition was filed and date of proposed new deadline, (B) be supported by a
11:00 AM
declaration establishing a sufficient explanation for the requested extension of time, and (C) contain a proof of service upon the case trustee (if any) and all creditors. The motion may be ruled upon without a hearing pursuant to LBR 9013-1(p).
FRBP 1007(c) holds that any extension of time to file schedules, statements, and other documents required under this rule may be granted only on motion for cause shown and on notice to the relevant parties. If a list, schedule, or statement is not prepared and filed as required.
FRCP 6(b)(1) contains a similar cause requirement, as it holds "a court may, for good cause, extend the time" for an act that must be done within a specific time. Fed. R. Civ. P. 6(b)(1). It would arguably be a higher standard than FRBP 1007, as the civil procedure rule requires "good cause", while the bankruptcy rule only requires "cause". FRCP 6(b)(1) good cause requires the party seeking an enlargement of time simply to "demonstrate some justification for the issuance of the order" and will "normally be granted in the absence of bad faith or prejudice to the adverse party." Bryant v. Smith, 165 B.R. 176, 182 (W.D. Va. 1994).
FRBP 1007(k) allows the court to order the trustee, a petitioning creditor, committee, or other party to prepare and file any of these papers within a time fixed by the court. Here, while Trustee has not established cause for Debtor to have additional time to file the required information, the Court is inclined to allow Trustee until July 10, 2018, to file schedules pursuant to FRBP 1007(k).
TENTATIVE RULING
Based on the foregoing, the Court’s tentative ruling is to GRANT the Motion and allow Trustee until July 10, 2018, to file any of the deficient information.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Hector Comparan Sarabia Pro Se
Movant(s):
Robert Whitmore (TR) Represented By Cathy Ta
11:00 AM
Trustee(s):
Robert Whitmore (TR) Represented By Cathy Ta
11:00 AM
From: 6/13/18 Also #4
EH
Docket 5
On May 29, 2018, William & Becky Colvin (collectively "Debtors"; individually, "William" and "Becky") filed a Chapter 7 voluntary petition. That same day, Debtors filed two motions: (1) a "motion for exemption from credit counseling due to mental incapacity and physical disability"; and (2) a "motion that William J. Colvin be appointed as "next friend" nunc pro tunc for co-debtor Becky L. Colvin." Both motions were set for hearing on June 13, 2018. The Court notes that, pursuant to the Local Rules, the form notice used by Debtors, and the contents of the motions, any party wishing to oppose the motions must file opposition at least fourteen days prior to the hearing. Debtors scheduled the instant hearings on shortened notice without Court permission, however, and, as a result, the opposition deadline was a day after the service deadline.
The factual background is the same for both requests. Debtors assert that Becky was kicked in the head by a horse and has spent the last twelve years in an at-home
11:00 AM
hospital bed with the exception of health care appointments. Debtors assert that Becky is unable to talk or effectively communicate.
Waiver of Credit Counseling Requirement
11 U.S.C. § 109(h)(4), which identifies an exception to the prepetition credit counseling requirement, states:
The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and "disability" means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in person, telephone, or Internet briefing required under paragraph (1).
The Court finds that William’s declaration sets forth sufficient evidence to establish Becky’s disability for purposes of § 109(h)(4). Due to the improper notice of the motion for a waiver of the credit counseling requirement, however, the Court is inclined to CONTINUE this motion for two weeks, at which time the Court intends to GRANT the motion if no opposition has been filed.
Next Friend
11:00 AM
FED. R. BANKR. P. Rule 1004.1 allows "a representative, including a general guardian, committee, conservator, or similar fiduciary," to file a voluntary petition on behalf of an incompetent person.
The rule further provides that:
[a]n infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.
Rule 1004.1 is patterned after FED.R.CIV.P. Rule 17(c), which applies to adversary proceedings pursuant to FED. R. BANKR. P. Rule 7017. That rule provides that an incompetent person may sue "by a next friend or by a guardian ad litem" if the incompetent person does not have a duly appointed representative, and provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action."
Cases interpreting Rule 17(c) look to the law of the state in which the subject is domiciled and follow the state's incompetency laws." In re Burchell, 2014 WL 1304635, at *1 (Bankr. N.D. Ohio 2014)(internal citations omitted). This court shall thus look to the California Probate Code’s § 811 which outlines the possible bases for a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, including for example, incapacity to contract or to execute wills or trusts.
In support of the Motion, the Debtors have attached the Declaration of William in which he details the extensive limitation that Becky experiences due to the injury suffered by a horse. Notwithstanding these diagnosis, § 811(d) provides that "the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." Instead, California law requires evidence of specific deficits and a link between the identified deficits and the acts that the allegedly incompetent person would otherwise have capacity to perform. The types of deficiencies are outlined in § 811 as follows:
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Information processing, including, but not limited to, the following:
11:00 AM
Short- and long-term memory, including immediate recall.
Ability to understand or communicate with others, either verbally or otherwise.
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Hallucinations.
Delusions.
Uncontrollable, repetitive, or intrusive thoughts.
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
While William’s declaration presents evidence of Becky’s inability to community, the Court will require supplemental evidence as to Becky’s state of mind and ability to communicate (for example, a written medical diagnosis).
APPEARANCES REQUIRED.
Debtor(s):
William J Colvin Represented By Ronald L Brownson
Joint Debtor(s):
Becky L Colvin Represented By Ronald L Brownson
11:00 AM
Movant(s):
William J Colvin Represented By Ronald L Brownson Ronald L Brownson Ronald L Brownson
Becky L Colvin Represented By Ronald L Brownson
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From: 6/13/18 Also #3
EH
Docket 7
On May 29, 2018, William & Becky Colvin (collectively "Debtors"; individually, "William" and "Becky") filed a Chapter 7 voluntary petition. That same day, Debtors filed two motions: (1) a "motion for exemption from credit counseling due to mental incapacity and physical disability"; and (2) a "motion that William J. Colvin be appointed as "next friend" nunc pro tunc for co-debtor Becky L. Colvin." Both motions were set for hearing on June 13, 2018. The Court notes that, pursuant to the Local Rules, the form notice used by Debtors, and the contents of the motions, any party wishing to oppose the motions must file opposition at least fourteen days prior to the hearing. Debtors scheduled the instant hearings on shortened notice without Court permission, however, and, as a result, the opposition deadline was a day after the service deadline.
The factual background is the same for both requests. Debtors assert that Becky was kicked in the head by a horse and has spent the last twelve years in an at-home hospital bed with the exception of health care appointments. Debtors assert that Becky
11:00 AM
is unable to talk or effectively communicate.
Waiver of Credit Counseling Requirement
11 U.S.C. § 109(h)(4), which identifies an exception to the prepetition credit counseling requirement, states:
The requirements of paragraph (1) shall not apply with respect to a debtor whom the court determines, after notice and hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone. For the purposes of this paragraph, incapacity means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities; and "disability" means that the debtor is so physically impaired as to be unable, after reasonable effort, to participate in person, telephone, or Internet briefing required under paragraph (1).
The Court finds that William’s declaration sets forth sufficient evidence to establish Becky’s disability for purposes of § 109(h)(4). Due to the improper notice of the motion for a waiver of the credit counseling requirement, however, the Court is inclined to CONTINUE this motion for two weeks, at which time the Court intends to GRANT the motion if no opposition has been filed.
Next Friend
FED. R. BANKR. P. Rule 1004.1 allows "a representative, including a general guardian,
11:00 AM
committee, conservator, or similar fiduciary," to file a voluntary petition on behalf of an incompetent person.
The rule further provides that:
[a]n infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.
Rule 1004.1 is patterned after FED.R.CIV.P. Rule 17(c), which applies to adversary proceedings pursuant to FED. R. BANKR. P. Rule 7017. That rule provides that an incompetent person may sue "by a next friend or by a guardian ad litem" if the incompetent person does not have a duly appointed representative, and provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action."
Cases interpreting Rule 17(c) look to the law of the state in which the subject is domiciled and follow the state's incompetency laws." In re Burchell, 2014 WL 1304635, at *1 (Bankr. N.D. Ohio 2014)(internal citations omitted). This court shall thus look to the California Probate Code’s § 811 which outlines the possible bases for a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, including for example, incapacity to contract or to execute wills or trusts.
In support of the Motion, the Debtors have attached the Declaration of William in which he details the extensive limitation that Becky experiences due to the injury suffered by a horse. Notwithstanding these diagnosis, § 811(d) provides that "the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." Instead, California law requires evidence of specific deficits and a link between the identified deficits and the acts that the allegedly incompetent person would otherwise have capacity to perform. The types of deficiencies are outlined in § 811 as follows:
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Information processing, including, but not limited to, the following:
Short- and long-term memory, including immediate recall.
11:00 AM
Ability to understand or communicate with others, either verbally or otherwise.
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Hallucinations.
Delusions.
Uncontrollable, repetitive, or intrusive thoughts.
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
While William’s declaration presents evidence of Becky’s inability to community, the Court will require supplemental evidence as to Becky’s state of mind and ability to communicate (for example, a written medical diagnosis).
APPEARANCES REQUIRED.
Debtor(s):
William J Colvin Represented By Ronald L Brownson
Joint Debtor(s):
Becky L Colvin Represented By Ronald L Brownson
11:00 AM
Movant(s):
William J Colvin Represented By Ronald L Brownson Ronald L Brownson Ronald L Brownson
Becky L Colvin Represented By Ronald L Brownson
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
F.R.C.P. 9023 and 11 U.S.C. §105 EH
Docket 17
On May 3, 2018, Timothy Rice ("Debtor") filed a Chapter 7 voluntary petition.
The Debtor took his online credit counseling course in October 2017, but the certificate of credit counseling ("Certificate") expired. Debtor retook the course on May 3, 2018. Debtor’s attorney inadvertently used the expired Certificate for Debtor’s bankruptcy case. A deficiency notice was issued, yet the renewed certificate was still not uploaded. The case was dismissed on May 23, 2018.
On May 24, 2018, Debtor filed a motion to vacate dismissal ("Motion") and to reinstate the case.
LEGAL DISCUSSION
Under FRCP 60, a court may relieve a party from a final judgment or order for "mistake" or "any other reason justifying relief from the operation of the judgment".
11:00 AM
Fed. R. Civ. P. 60(b)(1)-(6). "Unless justice requires otherwise … no error or defect in any ruling or order … is ground for granting a new trial or for setting aside a verdict, or for vacating … unless refusal to take action appears to the court inconsistent with substantial justice" Fed. R. Civ. P. 61. The court must "disregard any error or defect in the proceeding, which does not affect the substantial right of the parties". Fed. R. Civ. P. 61.
The Bankruptcy Code also holds "no provision … shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules". 11 U.S.C. § 105(a).
Here, there was an admitted mistake by the Debtor’s attorney in inadvertently filing the expired Certificate. The Debtor’s attorney asks the court to not penalize the Debtor with another bankruptcy filing on his public record. Granting this motion is consistent with substantial justice, as Debtor’s attorney rightly asserts that the Debtor should not be penalized by another filing on his record due to the attorney’s mistake. The substantial rights of the parties are not affected by granting this motion, and equitable justice is advanced by granting this motion.
Based on the foregoing, the Court’s tentative ruling is to GRANT the Motion to vacate the dismissal and reinstate the case.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Timothy Rice Represented By Paul Y Lee
Movant(s):
Timothy Rice Represented By Paul Y Lee
11:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Docket 466
6/27/18
BACKGROUND
On October 24, 2013, Baleine LP ("Debtor" or "Defendant") filed for chapter 7 relief. On October 25, 2013, Douglas Roger, a general partner of the Debtor, filed his own bankruptcy case (6:13-27611 - "Roger Case"). Larry Simons ("Trustee") was appointed the chapter 7 trustee on both cases. On November 27, 2013, Helen Frazer was appointed as the successor chapter 7 Trustee for the Roger Case.
The Debtor owned property in New York, which was sold by the Trustee. On February 21, 2014, the Baleine Trustee filed a Proof of Claim in the Roger Case ("Claim"). As of May 4, 2018, the Baleine Trustee will have liquidated or abandoned all known assets except for the Claim. The Trustee’s funds total $404,999.04. There is uncertainty as to when the Roger Case will close.
On May 4, 2018, the Debtor filed this motion ("Motion") to close the current case and leave the Claim unadministered. The Debtor leaves open the possibility that the Court may administer the Claim later if Trustee receives a distribution from the Roger Estate. The Debtor also asks that the Claim be deemed not abandoned upon closure of this case. No opposition to the Motion has been filed.
DISCUSSION
"After an estate is fully administered and the court has discharged the trustee, the court shall close the case." 11 U.S.C. § 350(a). Any property under § 521(1) not otherwise administered at the time of the closing of a case is abandoned to the Debtor and deemed administered unless the court orders otherwise. 11 U.S.C. § 554(c) (emphasis added). A court may expressly order that a scheduled asset will not be abandoned to the debtor when a case is closed. See In re Prospero, 107 B.R. 732, 735 (Bankr. C.D. Cal. 1989).
11:00 AM
Here, granting the Motion in the creditors’ best interests. Any distribution on
the Claim is dependent on the administration of the Roger Case. Since it is uncertain when the Roger Case will close, this case should be closed so creditors may receive funds currently held in the estate, rather than keeping the case open for an indefinite period. Granting this motion would allow for the prompt closure of this case, the distribution of funds currently on hand, and would preserve the Claim if funds are to be received for distribution in the future. The Court is further inclined to deem the Claim as not abandoned, as it would preserve the Claim for future administration.
TENTATIVE RULING
Based on the foregoing, the Court’s tentative ruling is to GRANT the motion in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
11:00 AM
(Holding date)
From: 10/1/14, 11/5/14, 12/3/14, 12/15/14, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 10/21/15, 11/18/15, 12/16/15, 1/13/16, 3/2/16, 5/4/16, 6/1/16, 9/28/16, 11/16/16,
2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 9/20/17, 3/21/18
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
11:00 AM
Also #9 EH
Docket 32
6/27/18
BACKGROUND
On August 31, 2016, Jay Goodman ("Debtor" or "Defendant") filed for chapter 7 relief. Arturo Cisneros is the duly appointed chapter 7 trustee ("Trustee").
The Debtor and creditor Delia Moya ("Moya") were involved in a previous family law matter (Case Number IND1302108 – "Family Law Case"). The Debtor and Moya entered into a marriage settlement agreement ("MSA") on May 10, 2016.
Moya alleges the Debtor began threatening her with a Contempt Motion as early as August 11, 2017. The Debtor filed the Contempt Motion on February 12, 2018, and the Court issued the Order to Show Cause ("OSC") on February 27, 2018.
Subsequently, Moya hired counsel who believed that the Contempt Motion and OSC were frivolous and requested that the Debtor withdraw the motion before seeking sanctions. The Debtor did not withdraw the OSC and continued to litigate the issue.
On May 31, 2018, Moya filed this motion for attorney fees ("Motion") to require the Debtor to pay her attorney’s fees and costs associated with opposing the Contempt Motion and OSC. Moya asks for $8,350.00 in attorney’s fees: $6,850 to respond to the Contempt Motion and OSC, and $1,500 for bringing this Motion to enforce the MSA. In the alternative, Moya asks for an Order to Show Cause as to why Debtor should not be sanctioned. Concurrently, with this Motion, the Court is considering whether the Debtor’s counsel should be sanctioned for his role in the filing of the Contempt Motion.
11:00 AM
The Debtor filed an objection ("Objection") to this Motion on June 7, 2018.
The Creditor filed a reply ("Reply") to the Objection on June 20, 2018.
DISCUSSION
Section 523(a)(5) and § 523(a)(15) ("Section 523") except from discharge debts for domestic support obligations or in connection with a separation agreement, respectively.
Moya asserts she is entitled to attorney’s fees under the MSA. (Motion at Ex. 5, MSA, ¶ 14.2). The Amended EAO of the MSA requires that Moya be paid no less than $485.00 per month for spousal support arrears and agreed arrears. The MSA requires that "nothing herein shall preclude a court awarding need-based or conduct- based fees in any action or proceeding to enforce any of the provisions of this Agreement".
This Motion argues that the Debtor’s Contempt Motion and OSC were frivolously filed to preclude the enforcement of the MSA and Debtor’s payment responsibilities. Section 523(a)(5) and § 523(a)(15) excepts from discharge domestic support obligation or debts in connection with a separation agreement. Moya asserts she could not afford an attorney to defend herself from the Contempt Motion and OSC, yet was required to litigate to enforce the MSA. After Moya’s failed pro se attempt, she received an $8,350 loan for attorney fees from her friend, Dana Mcquown.
The Debtor’s Objection asserts that Moya’s motion is unintelligible and inconsistent with prior agreements. The Debtor is unsure whether Moya is filing a motion for attorney’s fees or a motion for an order to show cause, or both. These actions have different time limits for replies, and thus the distinction is significant. The Debtor argues that a March 28 OSC Contempt Hearing resulted in an agreement for a hearing on sanctions to proceed, and that Moya’s filing for sanctions is frivolous under these circumstances.
Moya’s Reply responds that filing this Motion was not frivolous, as this Motion asks for attorney’s fees, while the prior agreement sought sanctions. Moya further clarifies that this is a motion for attorney’s fees, with a request for an OSC as an alternative. Separately, the Court notes that the OSC issued after the March 28 hearing specifically regarded sanctions against the Debtor’s Counsel where the instant Motion seeks sanctions as against the Debtor.
As to the Debtor’s request for fees pursuant to the MSA, Moya has not
11:00 AM
provided sufficient legal authority to support the proposition that this Court has jurisdiction to award fees under the MSA or sufficient authority that the filing of an opposition to the Contempt Motion (i.e. a defensive act), would constitute an "act to enforce" the provisions of the MSA as contemplated by ¶ 14.2 of the MSA. In sum, Moya has failed to demonstrate that this Court has the legal authority to enforce the MSA.
As an alternative to granting fees pursuant to the MSA, Moya argues that §105 of the Bankruptcy Code ("Section 105") justifies sanctions against the Debtor and requests that this Court issue a new order to show cause for contempt against the Debtor, personally, for the fees incurred by Moya in defending against the Contempt Motion and OSC. The Court has already found that the filing of the Contempt Motion was itself improper and unsupported by law. Based on the record of the March 28, 2018, and June 13, 2018, hearings, the record reflects that the issuance of an OSC against the Debtor for his conduct in the filing of the Contempt Motion is justified.
TENTATIVE RULING
Based on the foregoing, the Court’s tentative ruling is to GRANT the motion in part for issuance of the OSC and DENY the motion in part regarding the enforcement of the MSA.
APPEARANCES REQUIRED.
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Movant(s):
Delia Moya Represented By
Summer M Shaw
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
From: 6/6/18, 6/13/18 Also #8
EH
Docket 23
On August 31, 2016, Jay Goodman ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge.
On February 12, 2018, Debtor filed a motion for an order to show cause why Delia Moya ("Moya"), Debtor’s ex-spouse, should not be held in civil contempt. The Court issued a corresponding order to show cause on February 27, 2018 (the "1st OSC"). On March 14, 2018, Moya filed a response to the 1st OSC. After issuing a tentative ruling, the Court, at a hearing on March 28, 2018, orally vacated the 1st OSC. On May 4, 2018, the Court issued an order vacating the 1st OSC and issuing an order to show cause why Debtor’s attorney, Christopher Hewitt ("Hewitt") should not be sanctioned for filing a frivolous pleading (the "2nd OSC").
On May 21, 2018, the hearing on the 2nd OSC was continued for one week by stipulation of the parties. On May 23, 2018, Hewitt filed his opposition to the 2nd OSC. On May 30, 2018, Moya filed a reply, requesting $6,850 for responding to the
11:00 AM
1st OSC and $2,000 for filing the reply in connection with the 2nd OSC.
On May 31, 2018, Moya filed a motion for attorney fees (the "Motion"). Moya’s Motion primarily requests that Debtor reimburse Moya for $8,350 in attorney’s fees ($6,850 for responding to the 1st OSC and $1,500 for the Motion). The Motion was set for hearing on June 27, 2018.
For the reasons set forth in the 2nd OSC and the reply, the Court believes that monetary sanctions are appropriate. Hewitt to address any ethical concerns arising from a possible conflict of interest presented by the instant situation.
APPEARANCES REQUIRED.
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
From: 8/30/17, 9/20/17, 11/1/17, 12/13/17, 2/7/18, 2/28/18, 3/28/18, 5/9/18,
6/6/18
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
2:00 PM
Adv#: 6:18-01099 LBS Financial Credit Union, a California Corporati v. Skans
EH
Docket 1
- NONE LISTED -
Debtor(s):
Rick Allen Skans Represented By Neil R Hedtke
Defendant(s):
Rick Allen Skans Pro Se
Plaintiff(s):
LBS Financial Credit Union, a Represented By Karel G Rocha
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
From: 3/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01040 Cisneros v. Harter et al
(Defendant Connie Flach Dismissed 6/5/18) (Defendant John Rose Dismissed 6/20/18) (Defendant Tammy Rose Dismissed 6/20/18) (Defendant Brennan Rose Dismissed 6/20/18) (Defendant KayLynne Rose Dismissed 6/20/18)
From: 4/25/18 EH
Docket 1
06/27/2018
The Status Conference is CONTINUED to August 22, 2018, 2:00 p.m. per the Plaintiff's request for time to finalize a settlement.
APPEARANCES WAIVED.
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
Defendant(s):
Joseph Harter Represented By
2:00 PM
Todd L Turoci
John Rose Represented By
Dina Farhat
Tammy Rose Represented By
Dina Farhat
Brennan Rose Represented By Dina Farhat
KayLynne Rose Represented By Dina Farhat
Plaintiff(s):
A. Cisneros Represented By
Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:18-01096 Pringle v. Bank of the West
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Bank of the West Pro Se
Plaintiff(s):
John Pringle Represented By
Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:17-01085 PRINGLE v. Winn et al
From: 7/12/17, 8/23/17, 10/25/17, 5/16/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Ralph Winn Represented By
Douglas A Plazak
Sterling Security Service, Inc. Represented By Seth W Wiener
Natalia V Knoch Represented By Seth W Wiener
Steven B Knoch Represented By Seth W Wiener
Stacy Winn Represented By
2:00 PM
Douglas A Plazak
Plaintiff(s):
JOHN P PRINGLE Represented By Charity J Manee Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:18-01089 Mata et al v. National Collegiate Student Loan Trust 2006-1 et a
Student Loan Trust 2007-1. (Charge To Estate) - Filing Fee Not Required. Determination of Discharge Under 11 U.S.C. Sect 523(a)(8) Nature of Suit: 63 - Dischargeability - 523(a)(8), student loan, 91 - Declaratory judgment.
EH
Docket 1
- NONE LISTED -
Debtor(s):
John Martin Mata Represented By Michael E Clark
Defendant(s):
National Collegiate Student Loan Represented By
Damian P Richard
NATIONAL COLLEGIATE Represented By Damian P Richard
National Collegiate Student Loan Represented By
Damian P Richard
Joint Debtor(s):
Livier Mata Represented By
Michael E Clark
2:00 PM
Plaintiff(s):
John Martin Mata Represented By Michael E Clark
Livier Mata Represented By
Michael E Clark
Trustee(s):
Helen R. Frazer (TR) Pro Se
3:00 PM
Docket Number INC 092 308 Riverside County Superior Court MOVANT: JERRY WANG AS RECEIVER
From: 6/5/18 EH
Docket 468
06/27/2018
Debtors and Dr. Roger (the "Roger Parties") oppose relief from stay only as to determination of postpetition fees/costs by the State Court.
Postpetition, as to Motion for Allowance of Administrative Expense Claim, the Roger Parties assert that this Court already determined the value of the Receiver’s postpetition services in connection with the Receiver Fee Motion and that the Receiver disagreed with this Court’s ruling. The Roger Parties couch the Receiver’s request for relief from stay as forum shopping. The Roger Parties’ also argue that the District Court opinions are not binding because the time lapse between the time when the District Court issued its opinions, and the numerous issues that have been litigated in the Bankruptcy Court in the interim, militate in favor of a bankruptcy court determination of postpetition fees.
As a threshold matter, the Court’s ruling on the Receiver Fee Motion is incorrectly characterized by the Roger Parties as a determination on the value of the Receiver’s claim for postpetition fees, where the Court’s decision instead clearly indicated was without prejudice and detailed deficiencies in the form of the Motion and the standard argued by the Receiver, but left open the possibility of the Receiver revising and bringing its motion again at a later date. The Court now considers the remaining arguments of the Roger Parties in light of the Curtis Factors.
3:00 PM
Partial or Complete Resolution of Issues
First, the Roger Parties’ arguments amount to an assertion that there are bankruptcy issues such as priority of claims and benefit to the estates that are within the exclusive jurisdiction of the bankruptcy court which cannot be resolved by a state action. On this point, the Movants do not dispute that bankruptcy issues will remain after the State Court has determined the total amount of all fees and costs, including postpetition amounts. However, the Movants underscore that the State Court is in the best position to determine, as a matter of state law, the total amount and allocation of Receiver/RFC’s fees/expenses and costs. The Court concurs with the Movants that relief from stay is likely to result in at least partial resolution of issues regarding the total amount of fees/expenses and costs RFC and Receiver are owed. Following such determinations, the parties can and will likely come before this Court for decisions regarding the allowance and priority of such claims. On the whole, the Court considers this factor neutral.
Whether there is lack of any connection with or interference with administration of the bankruptcy case
Movants do not argue that the calculation of fees lacks connection with the bankruptcy case, they simply argue that the State Court is the appropriate forum for calculation of such fees and costs. The Court agrees that the State Court is the appropriate forum for determination of the total amount of costs and fees and does not find that the Roger Parties have provided any argument indicating that such determination by the State Court would interfere with the bankruptcy cases. To the contrary, the Court finds that determination, in the first instance, by the State Court of the total amount of fees and costs awardable under state law is proper and that the interests of judicial economy favor such determination by the State Court prior to determination by this Court regarding the priority of such claims and other potential bankruptcy-related disputes over fees and costs. This factor weighs in favor of granting relief from stay.
Prejudice to Interests of Other Creditors and Other Interested Parties/ Balance of Hurt
The only prejudice asserted by the Roger Parties, is prejudice to Dr. Roger.
3:00 PM
Specifically, the Roger Parties argue that Dr. Roger will be harmed by having to litigate the issue of postpetition fees and costs in the State Court before the issue of his entitlement to a discharge has been resolved. The corollary argument is that if Dr. Roger obtains a discharge at least some of the fees/costs will not need to be paid by Dr. Roger. The Roger Parties opine that the delay in determination of the discharge issue has been the result of a strategy by the Movants. However, this Court has already determined with respect to the Dischargeability Action that Dr. Roger’s consent to numerous continuances of the Dischargeability Action preclude him from arguing that the Movants are at fault for the time delay in reaching resolution of that case. Based on the foregoing, the Court finds that as Dr. Roger would likely need to litigate the issue of postpetition fees/costs in either the State Court or in this Court, that the arguments regarding harm are inapposite and may need to determine fees as against Ebarb. This factor weighs in favor of granting relief from stay.
Third Parties
The Court further notes that the presence of Ebarb in the State Court Action complicates the ability of the Court to make a determination regarding fees/costs of the Movants where issues related directly to a non-debtor party may be implicated. This factor weighs in favor of granting relief.
Judicial Economy
Based on the Roger Parties’ nonopposition to the State Court’s determination of prepetition fees/costs, the issue of fees and costs will already move forward before the State Court. Additionally, as set forth above, the State Court is in the best position to determine the total award of fees and costs pursuant to state law and such determination is in the interests of judicial economy because it will limit this Court’s review to narrow bankruptcy related issues. For these reasons, judicial economy weighs in favor of granting relief from stay.
The Court finds that the remaining Curtis factors are inapplicable to the case at bar and that the remaining legal arguments of the Roger Parties are not relevant to a determination of whether the Curtis Factors support granting or denial of relief from stay.
TENTATIVE RULING
3:00 PM
The Court is inclined to GRANT relief from stay to Movants.
APPEARANCES REQUIRED.
On October 24, 2013, Baleine, LP ("Debtor") filed a Chapter 7 voluntary petition. Prior to the bankruptcy filing, on March 18, 2013, the state court had appointed Jerry Wang ("Wang") as receiver of the personal property assets of Debtor, as well as the personal property assets of Douglas Roger ("Roger") and Roger’s medical corporation ("Roger Inc."). Wang now asserts that "nothing remains for [Wang] to do in terms of administering the receivership." [Dkt. No. 469, pg. 4, lines 8-9]. Wang has filed this instant motion for relief from the automatic stay in order to wind down the receivership. Both Trustee and Debtor have filed limited oppositions to the request.
Trustee requests that
to the extent Movant intends to seek to be paid an administrative expense claim in the Debtor’s case based on any services performed in the state court action, any orders/judgments obtained from the state court concerning Movant’s fees, expenses, and costs would not excuse Movant from compliance with 11 U.S.C. § 503, such that Movant’s fees, expenses, and costs would still be subject to approval of the Bankruptcy Court.
[Dkt. No. 472, pg. 2, lines 9-13]. Wang’s reply indicates that he accepts the condition requested by Trustee, and, therefore, the Court considers the limited objection of Trustee to be resolved.
Debtor’s limited opposition, however, remains unresolved. Debtor’s opposition states that Debtor
only opposes relief from stay for Movant to have the State Court determine post-petition fees, costs and any applicable interest, if any, on its claim, as this Court is better situated to make this determination, both because it is intimately familiar with the post-petition actions taken by Movant in the
3:00 PM
related bankruptcy cases all before this Court, as well as the fact that application of bankruptcy law is needed to make these post-petition determinations and allocations between the related debtors.
[Dkt. No. 474, section 3b(11)].
The Court notes that the district court has previous weighed in on similar issues in Roger’s bankruptcy. See In re Roger, 539 B.R. 837 (C.D. Cal. 2015); In re Roger, 2015 WL 7566647 (C.D. Cal. 2015) (pending appeal). While the Court disagrees with the blanket assertion offered by Wang that "[t]he District Court held that issues relating to the receivership are complex areas of state law that the State Court should decide," [Dkt. No. 469, pg. 5, lines 4-6], the Court agrees with Wang that the district court’s rationale is relevant here. Specifically, Court respects the district court’s conclusion that "the State Court, which presided over years of litigation involving numerous discovery disputes and the incurrence of $1,000,000 in attorneys’ fees, is better suited to resolve the issues." 2015 WL 7566647 at *10.1 This conclusion is specifically relevant because the primary basis of the unresolved objection of Debtor is that this Court is more familiar with the applicable law and facts. In accordance with the district court’s opinion, the Court disagrees with Debtor’s conclusion.
Debtor has also raised concerns regarding appropriately allocation expenses between the bankruptcy estates of Baleine, Roger, and Roger Inc. This concern, however, does not appear to be of high significance at this point in time, since those concerns could be litigated in the context of either a claim objection or an application for administrative fees. As conceded by Wang, "cause exists to grant relief from stay for a state court to first determine the total amount of a creditor’s claim/debtor’s liability. The effect of that determination on a bankruptcy estate is an issue of bankruptcy law for the bankruptcy court to decide on a later date." [Dkt. No. 477, pg. 2, lines 22-25].
In accordance with the rationale set forth in in the district court opinions of In re Roger, 539 B.R. 837 (C.D. Cal. 2015) and In re Roger, 2015 WL 7566647 (C.D. Cal.
3:00 PM
2015) and the reasons set forth in Wang’s moving papers, and noting that Wang has agreed to the condition requested by Trustee, and further noting that the argument of Debtor has either been rejected by the district court or can be determined by this Court at a later time and in a more appropriate setting, the Court is inclined to GRANT the motion, lifting the automatic stay for Wang to proceed to wind down the receivership in state court.
APPEARANCES REQUIRED.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Jerry Wang, Duly-Appointed State Represented By
Jeffrey K Garfinkle Anthony J Napolitano
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
3:00 PM
MOVANT: REVERE FINANCIAL CORPORATION
From: 6/5/18 Also #19
EH
Docket 626
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
3:00 PM
MOVANT: JERRY WANG, AS RECEIVER
From: 6/5/18 Also #18
EH
Docket 634
On October 20, 2013, Douglas J. Roger, MD, Inc. ("Debtor") filed a Chapter 7 voluntary petition. Prior to the bankruptcy filing, on March 18, 2013, the state court had appointed Jerry Wang ("Wang") as receiver of the personal property assets of Debtor, as well as the personal property assets of Douglas Roger ("Roger") and Baleine, LP ("Baleine"). Wang now asserts that "nothing remains for [Wang] to do in terms of administering the receivership." [Dkt. No. 469, pg. 4, lines 8-9]. Wang has filed this instant motion for relief from the automatic stay in order to wind down the receivership. Both Trustee and Debtor have filed limited oppositions to the request.
Trustee requests that
to the extent Movant intends to seek to be paid an administrative expense claim in the Debtor’s case based on any services performed in the state court action, any orders/judgments obtained from the state court concerning Movant’s fees, expenses, and costs would not excuse Movant from
3:00 PM
compliance with 11 U.S.C. § 503, such that Movant’s fees, expenses, and costs would still be subject to approval of the Bankruptcy Court.
[Dkt. No. 472, pg. 2, lines 9-13]. Wang’s reply indicates that he accepts the condition requested by Trustee, and, therefore, the Court considers the limited objection of Trustee to be resolved.
Debtor’s limited opposition, however, remains unresolved. Debtor’s opposition states that Debtor
only opposes relief from stay for Movant to have the State Court determine post-petition fees, costs and any applicable interest, if any, on its claim, as this Court is better situated to make this determination, both because it is intimately familiar with the post-petition actions taken by Movant in the related bankruptcy cases all before this Court, as well as the fact that application of bankruptcy law is needed to make these post-petition determinations and allocations between the related debtors.
[Dkt. No. 474, section 3b(11)].
The Court notes that the district court has previous weighed in on similar issues in Roger’s bankruptcy. See In re Roger, 539 B.R. 837 (C.D. Cal. 2015); In re Roger, 2015 WL 7566647 (C.D. Cal. 2015) (pending appeal). While the Court disagrees with the blanket assertion offered by Wang that "[t]he District Court held that issues relating to the receivership are complex areas of state law that the State Court should decide," [Dkt. No. 469, pg. 5, lines 4-6], the Court agrees with Wang that the district court’s rationale is relevant here. Specifically, Court respects the district court’s conclusion that "the State Court, which presided over years of litigation involving numerous discovery disputes and the incurrence of $1,000,000 in attorneys’ fees, is better suited to resolve the issues." 2015 WL 7566647 at *10.1 This conclusion is specifically relevant because the primary basis of the unresolved objection of Debtor is that this Court is more familiar with the applicable law and facts. In accordance with the district court’s opinion, the Court disagrees with Debtor’s conclusion.
3:00 PM
Debtor has also raised concerns regarding appropriately allocation expenses between the bankruptcy estates of Debtor, Roger, and Baleine. This concern, however, does not appear to be of high significance at this point in time, since those concerns could be litigated in the context of either a claim objection or an application for administrative fees. As conceded by Wang, "cause exists to grant relief from stay for a state court to first determine the total amount of a creditor’s claim/debtor’s liability. The effect of that determination on a bankruptcy estate is an issue of bankruptcy law for the bankruptcy court to decide on a later date." [Dkt. No. 477, pg. 2, lines 22-25].
In accordance with the rationale set forth in in the district court opinions of In re Roger, 539 B.R. 837 (C.D. Cal. 2015) and In re Roger, 2015 WL 7566647 (C.D. Cal.
2015) and the reasons set forth in Wang’s moving papers, and noting that Wang has agreed to the condition requested by Trustee, and further noting that the argument of Debtor has either been rejected by the district court or can be determined by this Court at a later time and in a more appropriate setting, the Court is inclined to GRANT the motion, lifting the automatic stay for Wang to proceed to wind down the receivership in state court.
APPEARANCES REQUIRED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Jerry Wang, Duly-Appointed State Represented By
Jeffrey K Garfinkle
3:00 PM
Trustee(s):
Joseph M Welch Brian T Harvey Anthony J Napolitano
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Adv#: 6:18-01093 Negrete Manrriquez v. BEAR STEARNS RESIDENTIAL MORTGAGE
EXHIBIT 2 (part 3) # 5 COMPLAINT - EXHIBIT 3) Nature of Suit: 72 - Injunctive relief - other, 91 - Declaratory judgment
EH
Docket 1
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Defendant(s):
BEAR STEARNS RESIDENTIAL Pro Se
JP Morgan Chase Bank Pro Se
SPS Select Portfolio Servicing, Inc. Represented By
Nancy L Lee
Plaintiff(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles Timothy D Murphy
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Marianne Bowers Represented By Thomas B Ure
Movant(s):
Marianne Bowers Represented By Thomas B Ure
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 56
On June 30, 2014, Juan & Maria Alba ("Debtors") filed a Chapter 13 voluntary petition. On July 31, 2014, LVNV Funding, LLC ("Creditor") filed an unsecured claim in the amount of $7,598.47("Claim 2"). That same day, Creditor also filed an additional unsecured claim in the amount of $836.99 ("Claim 3"). On August 11, 2014, Debtor’s Chapter 13 plan was confirmed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223
11:00 AM
F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b)(1) (2005) states:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
11:00 AM
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 2 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identifies a last transaction date of October 30, 2000. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 2 is unenforceable.
Claim 3 is based on "retail" debt. The claim’s supporting documentation suggests that the claim fits within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of December 15, 2000. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable. Furthermore, the Court deems failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-(1)(h).
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
11:00 AM
Debtor(s):
Juan Alba Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Maria Alba Represented By
Rebecca Tomilowitz
Movant(s):
Juan Alba Represented By
Rebecca Tomilowitz
Maria Alba Represented By
Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 57
On June 30, 2014, Juan & Maria Alba ("Debtors") filed a Chapter 13 voluntary petition. On July 31, 2014, LVNV Funding, LLC ("Creditor") filed an unsecured claim in the amount of $7,598.47("Claim 2"). That same day, Creditor also filed an additional unsecured claim in the amount of $836.99 ("Claim 3"). On August 11, 2014, Debtor’s Chapter 13 plan was confirmed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223
11:00 AM
F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b)(1) (2005) states:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
11:00 AM
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 2 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identifies a last transaction date of October 30, 2000. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 2 is unenforceable.
Claim 3 is based on "retail" debt. The claim’s supporting documentation suggests that the claim fits within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of December 15, 2000. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable. Furthermore, the Court deems failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-(1)(h).
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
11:00 AM
Debtor(s):
Juan Alba Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Maria Alba Represented By
Rebecca Tomilowitz
Movant(s):
Juan Alba Represented By
Rebecca Tomilowitz
Maria Alba Represented By
Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Movant(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 113
- NONE LISTED -
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/1/18 Also #8 & #9 EH
Docket 46
On February 28, 2005, Debtor executed two notes and deeds of trust. One had an original amount of $500,000, and the current beneficiary is FMJM RWL III Trust 2015-1. The other had an original amount of $106,280, and the current beneficiary is Deutsche Bank National Trust Company ("Deutsche"). The security interest related to the latter is the subject of the lien avoidance motion here.
Deutsche asserts that Debtor and the first lienholder entered into a modification on June 1, 2013, and that such modification prejudiced the rights of Deutsche. Deutsche contends that the modification was without its permission, and that the senior lienholder relinquished its priority with respect to the modified terms. If Deutsche is correct, then Deutsche would not be wholly unsecured and Debtor’s motion would be unsuccessful.
Subject to discussion from the parties, the Court is inclined to GRANT Deutsche’s request for a continuance to allow Deutsche to file an adversary proceeding regarding the extent or priority of a lien.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 & #9 EH
Docket 111
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 & #8 EH
Docket 0
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 17
On March 1, 2018, Richard Espinoza ("Debtor") filed a Chapter 13 voluntary petition. On May 3, 2018, LVNV Funding, LLC ("Creditor") filed an unsecured claim in the amount of $1,557.40 ("Claim 5"). On May 12, 2018, Debtor filed an objection to claim 5. On May 30, 2018, Debtor’s Chapter 13 plan was confirmed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b)(1) (2005) states:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that—
such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than
11:00 AM
because such claim is contingent or unmatured;
CAL. CODE CIV. P. § 337 (2016) provides a statute of limitations of four years for debts founded on written contracts, book accounts, accounts stated based upon account in writing, "balance of mutual, open and current account in writing," and rescission of written contract. Once the statute of limitations has passed, the claim is unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 5 is based on "credit card" debt. This appears to fit within the category established by CAL. CODE CIV. P. § 337. Therefore, the statute of limitations is four years. The proof of claim identified a last transaction date of June 15, 1999. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 5 is unenforceable.
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 5.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Richard Espinoza Represented By Rebecca Tomilowitz
Movant(s):
Richard Espinoza Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
11:00 AM
Trustee(s):
Rebecca Tomilowitz
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MOISES CORTEZ
EH
Docket 22
The Court is inclined to DENY the motion for failure to provide adequate notice and execute proper service. First, Debtor failed to provide telephonic notice of the hearing to secured creditors in accordance with the terms of order setting hearing on shortened notice. Additionally, Debtor provided written notice of the hearing the day after the deadline specified in the order setting hearing on shortened notice, and also failed to serve the secured creditors pursuant to FED. R. BANKR. P. Rule 7004 as required by the Court’s self-calendaring procedures.
As to the merits, there is no detail presented as to the reasons the prior case was dismissed, or to Debtor’s changed circumstances. Finally, there is no declaration by Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Moises Cortez Represented By Neil R Hedtke
Movant(s):
Moises Cortez Represented By Neil R Hedtke
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 15
On April 5, 2018, Adrian & Patricia Lopez ("Debtors") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2000 Nisan Frontier King Cab (the "Proper"). On May 24, 2018, Debtors a motion to determine the value of the property. No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the Property’s value, and thus its secured portion, should be determined to be $1,125, with an unsecured deficiency claim for $3,619.08. In support of its valuation, Debtor has provided a Kelley Blue Book valuation for "Trade-in Value".
11:00 AM
Currently, the Ninth Circuit has not established a uniform method for valuations. See In re Ayres, 2010 WL 652825 at *5, 2010 Bankr.LEXIS 519 at *13 (Bankr.N.D.Cal. February 16, 2010) (collecting cases detailing vehicle valuation and describing the state of the law in the Ninth Circuit). In In re Morales, however, which this Court has previously cited with approval, it was determined that retail value should be calculated "by adjusting the Kelley Blue Book or N.A.D.A. Guide retail value for a like vehicle by a reasonable amount in light of the evidence presented regarding the condition of the vehicle or any other relevant factors." In re Morales, 387 B.R. 36, 45 (Bankr.C.D.Cal.2008).
According to the court in In re Morales, the retail values, and not the private party or trade-in values, are the appropriate starting points because the text of § 506(a)(2) refers to "the price a retail merchant would charge" and does not refer to the price a private party would charge. Morales at 46. Here, Debtors have failed to provide evidence regarding the retail value of the property. As a result, the Court is inclined to CONTINUE the matter for supplemental evidence.
APPEARANCES REQUIRED.
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Movant(s):
Adrian Lopez Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
11:00 AM
Patricia Lopez Represented By Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/7/18 Also #16
EH
Docket 23
The parties dispute whether the fair market value of the real property located at 32283 Daisy Dr., Winchester, CA 92596 is worth more or less than the amount owing on the first deed of trust. The Court having reviewed the evidence submitted by Debtor, as well as the evidence submitted by the holder of the second deed of trust, Trinity Financial Services, LLC ("Trinity"), and finds the latter to be more compelling for the following reasons. First, Debtor has not submitted an appraiser’s declaration authenticating the appraisal. Second, Debtor’s "appraisal" is simply a comparative market analysis which identifies 14 comparable listings which sold for an average of
$443,750, then concludes that the real property at issue here is only worth $393,000, without any explanation. The appraisal provided by Trinity, on the other hand, contains an appraiser’s declaration, utilizes a more thorough methodology, and arrives at a conclusion more compatible with the comparable sales. As a result, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
11:00 AM
Joint Debtor(s):
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Movant(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #15 EH
Docket 0
- NONE LISTED -
Debtor(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #18 EH
Docket 12
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Movant(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #17 EH
Docket 0
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Oscar Franco Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Edubijes Franco Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 39
On April 20, 2018, Robert Ridge ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2013 Toyota Camry (the "Property"). On June 6, 2018, Debtor filed a motion to determine the value of the Property ("Motion"). No opposition has been filed.
As a preliminary matter, the Court notes that FED. R. BANKR. P. Rule 3012 requires a motion to value collateral to be served on the holder of the secured claim. Here, the proof of service to the instant motion [Dkt. No. 39, pg. 8] only indicates that service was executed on the Debtor, his attorney, the Chapter 13 Trustee and UST.
Additionally, the Court notes that the only evidence in support of Debtor’s proposed valuation is a declaration of Debtor which asserts that Debtor relied upon personal
11:00 AM
knowledge and Kelley Blue Book. Debtor has not provided any exhibit, however, containing Kelly Blue Book estimates. For the foregoing reasons, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Movant(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #20 EH
Docket 0
- NONE LISTED -
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norma Hermosillo Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe Anthony Dominguez Sr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Davison Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
William Edward Wall Jr. Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Dave Anthony Williams Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tracie Sonnier Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mark F. Costello Represented By Paul Y Lee
Joint Debtor(s):
Carol D. Costello Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Frederick Biehl Represented By Steven L Bryson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rorye James Mosley Sr. Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
JUANITA M ROMERO Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Amy Corinne Ames Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John L Velasquez Represented By Paul Y Lee
Joint Debtor(s):
Christi J Velasquez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Israel Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Herman Owen Samuels Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jacqueline L Mason-McDuffy Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marco Tulio Magana Represented By Daniel King
Joint Debtor(s):
Gloria Louisa Magana Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kevin Eugene Martin Represented By Michael E Clark
Joint Debtor(s):
Francisca Chavez-Martin Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miguel Pinedo Represented By
James Geoffrey Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramon Angel Moyano Represented By
James Geoffrey Beirne
Joint Debtor(s):
Alicia Cortes Moyano Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Carlos Jesus Garcia Represented By
James Geoffrey Beirne
Joint Debtor(s):
Mirna Cloris Garcia Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Quynhgiao N Tran Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Martinez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Aurora Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Elaine Sackett Represented By Brian C Andrews
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Candelario P Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shannon Michelle Price Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elizabeth Lucas Represented By Steven A Wolvek
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Diana L Montoya Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Noemi Meraz Espinoza Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael Moreno Represented By Andrew Nguyen
Joint Debtor(s):
Azucena Moreno Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Anthony Anunciation Represented By Jeffrey B Smith
Joint Debtor(s):
Lisa Rhea Anunciation Represented By Jeffrey B Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mario Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Victorio Roman Manabat Represented By John A Varley
Joint Debtor(s):
Sheila Rosales Manabat Represented By John A Varley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 212
- NONE LISTED -
Debtor(s):
Mildred Goodridge Crawford Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 277
- NONE LISTED -
Debtor(s):
Jose N Recinos Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Patricia Recinos Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 113
- NONE LISTED -
Debtor(s):
Bryan K. Harrison Represented By April E Roberts
Joint Debtor(s):
Dawn Harrison Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 61
- NONE LISTED -
Debtor(s):
Claudie Gene West Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 63
- NONE LISTED -
Debtor(s):
Melanie Lourdes Davis Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- NONE LISTED -
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
EH
Docket 1
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Plaintiff(s):
Zamucen & Curren LLP Represented By Patricia J Grace
11:00 AM
EH
Docket 39
Debtor(s):
Maria Madrid Represented By Lauren Rode Yelena Gurevich
Movant(s):
Maria Madrid Represented By Lauren Rode Lauren Rode Yelena Gurevich Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 57
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Movant(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 27
Debtor(s):
Brenda Barlow Represented By Lionel E Giron
Movant(s):
Brenda Barlow Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JOSE & LILIAN VELASCO
From: 6/5/18, 6/26/18 EH
Docket 9
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Movant(s):
Jose Velasco Represented By
Daniel King
Lilian Micaela Velasco Represented By Daniel King Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 31
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Movant(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Eddie Fitz Represented By
Brian C Andrews
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Kimberly Michelle Giron Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Everett William Delbridge III Represented By William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Michael J. Fahey Represented By Allan Calomino
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Kanwalpreet Kaur Grewal Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ruby Lee Frazier Represented By Michael R Totaro
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
William Bennett Averett Represented By John D Monte
Joint Debtor(s):
Nora Lee Averett Represented By John D Monte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Sandra Lorena Parra Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Joel V. Fierros Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Vadany Sophan Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Cabrini Haynes Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Maggie Ruth Thomas Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Clinton Jay Blankenship Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Patricia Ann Cook Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Glenda Faye Price Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Stephan D. Clark Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Adan Duarte Represented By
William E Windham
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Athenne Devena Musni Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Christopher Paul Soliz Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Daniel Alvarado Ramirez Represented By Dana Travis
Joint Debtor(s):
Elvia Lena Ramirez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ridley R. Molders Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Alfredo Pena Represented By
Dana Travis
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Charles Williams, III Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
John Forest Harmon Jr. Represented By David Lozano
Joint Debtor(s):
Margaret Anne Vieyra-Harmon Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 113
Debtor(s):
Bryan K. Harrison Represented By April E Roberts
Joint Debtor(s):
Dawn Harrison Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 114
Debtor(s):
Fernando Avila Tovar Represented By Matthew D Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 59
Debtor(s):
Ray Valdepena III Represented By Ryan A. Stubbe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 24
Debtor(s):
Nora Manzo Represented By
Raymond J Seo
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Also #40 EH
Docket 302
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
12:00 PM
From: 6/26/18 Also #39
EH
Docket 303
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
10:00 AM
MOVANT: HENRY AND MITZY GUTIERREZ
EH
Docket 10
7/10/2018
The Court, having considered the motion and the evidence contained therein and finding such to be sufficient to overcome the presumption of bad faith arising under 11 U.S.C. § 362(c)(3), is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Henry M Gutierrez Represented By Luke Jackson
Joint Debtor(s):
Mitzy D Gutierrez Represented By Luke Jackson
Movant(s):
Henry M Gutierrez Represented By Luke Jackson
Mitzy D Gutierrez Represented By Luke Jackson
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: VICTOR PORTILLO
EH
Docket 13
7/10/2018
The Court, having considered the motion and the evidence contained therein and finding such to be sufficient to overcome the presumption of bad faith arising under 11 U.S.C. § 362(c)(3), is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Victor Portillo Represented By Rebecca Tomilowitz
Movant(s):
Victor Portillo Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JOE R GARCIA
EH
Docket 13
7/10/2018
The Court finding that the Debtor having failed to serve Citimortgage to the attention of an officer and via certified mail as required pursuant to Rule 7004(h), the hearing on the Motion shall be CONTINUED. Additionally, on page 1 of the Motion, Citi was not indicated as the party entitled to Notice. Finally, the Declaration attached is from Debtor’s counsel, not from the Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Movant(s):
Joe R Garcia Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MIRIAM TORRES
EH
Docket 11
7/10/2018
A comparison between the Debtor’s Schedules I and J for the current and prior case does not substantiate the additional income from roommates asserted by the Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Miriam Torres Represented By Paul Y Lee
Movant(s):
Miriam Torres Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: 29605 SOLANA WAY LLC
Also #6 EH
Docket 9
- NONE LISTED -
Debtor(s):
Anissa Jean Bridges Pro Se
Movant(s):
29605 SOLANA WAY, LLC Represented By Scott Andrews
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: FAIRFIELD VON KARMAN LLC
Also #5 EH
Docket 10
- NONE LISTED -
Debtor(s):
Anissa Jean Bridges Pro Se
Movant(s):
FAIRFIELD VON KARMAN LLC Represented By
Scott Andrews
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: CORINTHIA A. WILLIAMS
EH
Docket 12
7/10/2018
The Court, having considered the improper service and the evidence contained therein and finding such to be sufficient to overcome the presumption of bad faith arising under 11 U.S.C. § 362(c)(3), is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JAMES PRATER
CASE DISMISSED 7/2/18
EH
Docket 11
07/10/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. APPEARANCES REQUIRED.
Debtor(s):
Daniel Davison Pro Se
Movant(s):
James Prater Represented By
Barry L O'Connor
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CALIFORNIA COAST CREDIT UNION
EH
Docket 12
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. APO request DENIED as moot. Request under § 362(d)(2) is DENIED for lack of evidence as to value or prospect for reorganization.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
California Coast Credit Union Represented By
10:00 AM
Trustee(s):
Lisa S Yun
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: YAMAHA MOTOR FINANCE CORP
EH
Docket 8
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Anthony Benitez Represented By Nicholas M Wajda
Movant(s):
Yamaha Motor Finance Corp. Represented By Karel G Rocha
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: ALLY BANK
EH
Docket 9
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Antonio Saavedra Represented By Hector Vega
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 10
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Eric Yanez Represented By
Christopher Hewitt
Joint Debtor(s):
Adriana Yanez Represented By Christopher Hewitt
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
10:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 7
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Tiffany L Hamm Represented By Christopher Hewitt
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: WILLIAM MEINEKE AND KATHIE MEINEKE
EH
Docket 31
7/10/2018
The Court is inclined to DENY the motion, as filing was not timely. The motion must be filed and heard within 30 days the Petition Date.
APPEARANCES REQUIRED.
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Movant(s):
William Meineke Represented By Todd B Becker Todd B Becker
Kathie Meineke Represented By Todd B Becker
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NISSAN INFINITI LT
EH
Docket 14
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request to lift § 1301 stay. Request for APO DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Athenne Devena Musni Represented By
Ramiro Flores Munoz
Movant(s):
NISSAN-INFINITI LT. Represented By
Michael D Vanlochem
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 10
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Richard Gaines Represented By Todd L Turoci
Joint Debtor(s):
Natalie Lomeli Represented By Todd L Turoci
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: BANK OF THE WEST
EH
Docket 12
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Christopher Michael Hafer Represented By Joel M Feinstein
Movant(s):
Bank of the West Represented By
Mary Ellmann Tang
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: FIRST TECH FEDERAL CREDIT UNION
EH
Docket 10
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Christine Irene Huff Represented By Morton J Grabel
Movant(s):
First Tech Federal Credit Union Represented By Nichole Glowin
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: GLOBAL AZ INVESTING INC
EH
Docket 10
- NONE LISTED -
Debtor(s):
Maria D Lopez Ramirez Represented By Edgar P Lombera
Movant(s):
Global Az Investing, Inc Represented By Robert A Krasney
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: NEW PENN FINANCIAL LLC
EH
Docket 12
07/10/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3 permitting Movant to offer loan workout options.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ana Maria Flores Pro Se
Movant(s):
New Penn Financial LLC d/b/a Represented By Mark S Krause
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 13
07/10/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and 362(d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3 permitting Movant to offer loan workout options.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Steven Robert Smith Represented By Robert L Firth
Movant(s):
Freedom Mortgage Corporation Represented By Nancy L Lee
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
EH
Docket 27
07/10/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶3 and 12.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Steven Alvarez Represented By Julie J Villalobos
Joint Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Movant(s):
HSBC Bank USA, National Represented By Nancy L Lee
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: TATIANA NOEMI ALEGRE aka RICK ALEGRE
From: 5/29/18 EH
Docket 21
05/29/2018
The Motion was not served on any creditors. As such the Motion must at the outset be denied for a failure to provide creditors with due process.
The Opposition argues that the Debtor has failed to demonstrate changed circumstances and that the Motion is untimely. As to the first argument, the Court concurs. The only "change in circumstances" indicated by the Debtor is that she has now hired counsel. However, there is no explanation of why counsel for the second and third case did not verify the petition was complete when the documents were filed.
As to the second grounds indicated by the Opposition, the Court does not read § 362(c) as requiring a motion to impose the stay to be heard within 30 days of the petition day, it must only be filed prior to the expiration of the 30-day period. Here, the Motion was timely.
The Reply does not cure the service issues and responds only by offering objecting creditor an APO.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson
Movant(s):
Tatiana Noemi Alegre Represented By LeRoy Roberson LeRoy Roberson
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 29
07/10/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶3.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Robert Thomas Gonzales Represented By Brad Weil
Movant(s):
The Bank of New York Mellon FKA Represented By
Erin M McCartney
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 34
07/10/2018
Service: Proper Opposition: Yes
The Debtor asserts that there is a sufficient equity cushion to protect Movant and requests an APO and opportunity to cure the missed May and June mortgage payments. The Debtor, however, has inadequately explained the reason for the defaults.
APPEARANCES REQUIRED.
Debtor(s):
Wayman L Guider Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 35
- NONE LISTED -
Debtor(s):
Charles Lee Dismukes Represented By Nicholas M Wajda
Movant(s):
Wells Fargo Bank N.A. et al, Represented By
S Renee Sawyer Blume Asya Landa
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DITECH FINANCIAL LLC
EH
Docket 31
07/10/2018
Service: Proper Opposition: Yes
Parties to indicate status of APO negotiations. APPEARANCES REQUIRED.
Debtor(s):
Harvey Everett Mosely Represented By Paul Y Lee
Joint Debtor(s):
Jean Ann Mosely Represented By Paul Y Lee
Movant(s):
DITECH FINANCIAL LLC Represented By Julie Griffis Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 32
- NONE LISTED -
Debtor(s):
Jesse Norman Dofelmire Represented By Carey C Pickford
Joint Debtor(s):
Roucelle Frias Dofelmire Represented By Carey C Pickford
Movant(s):
BMW Bank of North America Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALLY BANK
EH
Docket 32
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Tarra Marie Castillo Represented By Brian J Soo-Hoo
Movant(s):
Ally Bank Represented By
Adam N Barasch
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MOUNTAIN WEST FINANCIAL, INC.
EH
Docket 37
07/10/2018
Service: Proper Opposition: no
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT as to ¶¶ 3 and 6. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Paulo Cesar Machuca Represented By Scott Kosner
Movant(s):
Mountain West Financial, Inc., its Represented By
Michelle R Ghidotti Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18, 3/6/18, 4/10/18, 5/8/18, 6/5/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
Armin M Kolenovic
10:00 AM
Trustee(s):
Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WOLLEMI ACQUISITIONS, LLC
EH
Docket 64
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request to lift co-debtor stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Movant(s):
Wollemi Acquisitions, LLC Represented By Bret D. Allen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 6/5/18 EH
Docket 66
APPEARANCES REQUIRED.
Debtor(s):
Valicia LaShawn Fennell Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 123
07/10/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Pablo Javier Solis Jr. Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Norma Alicia Solis Represented By Jenny L Doling Summer M Shaw
Movant(s):
Americredit Financial Services, Inc., Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: BRIDGECREST CREDIT COMPANY LLC
EH
Docket 40
07/10/2018
Service is Proper Opposition: None
There does not appear to be a statement of intention to surrender as an Exhibit as stated in the Motion. Debtor otherwise appears to have cured.
APPEARANCES REQUIRED.
Debtor(s):
Stefanie Ann Nelson Represented By David Lozano
Movant(s):
Bridgecrest Credit Company, LLC, Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 79
- NONE LISTED -
Debtor(s):
Maria Elizabeth Venturini Represented By Amanda G Billyard Andy C Warshaw
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 11/28/17, 1/23/18, 3/6/18, 4/10/18, 6/5/18 EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Debbie Hernandez Rosemary Allen Jamie D Hanawalt
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
2:00 PM
Adv#: 6:18-01105 Johnson v. Johnson
EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
MOVANT: BALBOA CAPITAL CORPORATION
Also #41 EH
Docket 310
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Balboa Capital Corporation Represented By
Erin M McCartney
2:00 PM
From: 1/9/18, 4/10/18 Also #40
EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
Adv#: 6:18-01111 David M. Goodrich, Chapter 11 Trustee v. American Express Company, a
M. Goodrich, Chapter 11 Trustee against American Express Company, a New York Corporation dba American Express, American Express Travel Related Services, Inc., a New York corporation dba American Express. (Charge To Estate). Complaint for Avoidance of Preferential and Fraudulent Transfers, Recovery of Transferred Property or Value Thereof, Preservation of Avoided Transfers and Adversary Proceeding Cover Sheet Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)) (Werth, Steven)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
American Express Company, a New Pro Se American Express Travel Related Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01112 David M. Goodrich, Chapter 11 Trustee v. Source Medical Billing &
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Source Medical Billing & Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01113 David M. Goodrich, Chapter 11 Trustee v. Netreva, Inc., a California
M. Goodrich, Chapter 11 Trustee against Netreva, Inc., a California corporation. (Charge To Estate). Complaint for Avoidance and Recovery of Preferential Transfers Pursuant to 11 U.S.C. §§ 547(b), 550 and 551 and Adversary Proceeding Cover Sheet Nature of Suit: (12 (Recovery of money/property - 547 preference)) (Werth, Steven)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Netreva, Inc., a California Represented By Lazaro E Fernandez
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01114 David M. Goodrich, Chapter 11 Trustee v. The Blue Law Group, Inc, a
M. Goodrich, Chapter 11 Trustee against The Blue Law Group, Inc, a California corporation. (Charge To Estate $350.00). Complaint for Avoidance and Recovery of Preferential Transfers Pursuant to 11 U.S.C. §§ 547(b), 550 and 551 and Adversary Proceeding Cover Sheet Nature of Suit: (12 (Recovery of money/property - 547 preference)) (Werth, Steven)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
The Blue Law Group, Inc, a Represented By Michael K Blue
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
10:00 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Alexander Joo Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
$25,099.68
EH
Docket 14
- NONE LISTED -
Debtor(s):
Jess Wayne Markham Represented By Stephen H Darrow
Joint Debtor(s):
Marie B Markham Represented By Stephen H Darrow
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Sharon R. Walters Represented By Emilia N McAfee
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Vicente Delgado Muro Represented By Juanita V Miller
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 42
On July 21, 2011, John & Carolyn Vega ("Debtors") filed a Chapter 7 voluntary petition. On November 2, 2011, Debtors received a discharge and five days later the case was closed.
On March 1, 2017, UST filed a motion to reopen the case to investigate and administer litigation settlement proceeds. On December 12, 2017, the Chapter 7 trustee filed two motions to approve compromise. The first motion, between the estate and the debtors and primarily relating to the amount of Debtors’ exemption in the proceeds, was granted on January 5, 2018. The second motion was set for hearing and is under consideration now.
Pursuant to the instant compromise motion the Trustee requests: (1) approval of the
11:00 AM
compromise of the products liability action; (2) authorization to employ Audet & Partners LLP and Levin Simes LLP as co-special counsel and payment of their compensation; and (3) related relief, including approval of the settlement payment disbursements. No opposition to the instant compromise motion has been filed.
FED. R. BANKR. P. Rule 9019(a) states: "On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct." The Court may grant approval if it determines that the compromise is "fair and equitable." See In re Berkeley Delaware Court, LLC, 834 F.3d 1036, 1039 (9th Cir. 2016). In determining whether the compromise is fair and equitable, the Court applies a four-factor test. See In re DiCostanzo, 399 Fed. Appx. 307, 308 (9th Cir. 2010). The test was originally outlined in In re A & C Props., and provides for consideration of
(a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it;
(d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
784 F.2d 1377, 1381 (9th Cir. 1986) (quotation omitted). "The bankruptcy court has great latitude in approving compromise agreements." In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988). Typically, "a compromise should be approved unless it falls below the lowest point in the range of reasonableness." In re Art & Architecture Books of the 21st Century, 2016 WL 1118742 at *25 (Bankr. C.D. Cal. 2016) (quotation omitted).
The proposed settlement here, however, presents a unique situation. The proposed settlement represents an "aggregate settlement" negotiated in the context of, presumably, state or federal district court litigation. The proposed settlement has not been disclosed to the Court on the basis that it contains a confidentiality provision. Furthermore, Trustee motions lacks detail in its description of the situation. The nature, extent and value of Debtor’s claim are completely unknown to this Court. The
11:00 AM
factual situation giving rise to Debtor’s claim is unclear, and the Court lacks any ability to estimate the value of the claim. Furthermore, as a result of the absence of information, the Court lacks the information necessary to determine the reasonableness of the requested attorney’s fees.
The Bankruptcy Code demonstrates a preference for public access to the proceedings. See 11 U.S.C. § 107 (2010). There are procedures by which certain documents, including settlements, can be classified as confidential. See, e.g., In re Oldco M Corp., 466 B.R. 234 (Bankr. S.D.N.Y. 2012); In re Hemple, 295 B.R. 200 (Bankr. D. Vt.
2003). In order for the Court to apply the legal standards of 11 U.S.C. § 107, the Court must be given an opportunity to review the material and make a determination regarding whether the matter is entitled to confidentiality.
The Court is inclined to DENY the motion or CONTINUE the matter for supplemental evidence and analysis.
APPEARANCES REQUIRED.
Debtor(s):
John Vega Represented By
Jenny L Doling
Joint Debtor(s):
Carolyn Vega Represented By Jenny L Doling
Movant(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 60
07/11/2018
On September 17, 2016 ("Petition Date"), Jose and Angela Olvera ("Debtors") filed for Chapter 13 relief. On October 7, 2016 Ally Financial ("Creditor") filed a proof of claim ("Claim #1") in the amount of $9,522.45, $8,125.00 of which was secured by Debtor’s 2011 Chevrolet HHR ("HHR"). On October 10, 2016, Creditor filed a second secured proof of claim ("Claim #2) in the amount of $9,846.95,
$9,325.00 of which was secured by Debtor’s Chevrolet Impala ("Impala").
On March 2, 2017, Creditor was granted relief from the automatic stay and shortly thereafter repossessed the HHR and Impala. On or about March 8, 2017, Debtors filed a Notice of Conversion to Chapter 7 and this Court granted said conversion. On April 13, 2017, the Trustee filed a Notice of Assets and set a proof of claim deadline in the Chapter 7 Case for July 17, 2017. Creditor then filed their Amended Proof of Claims on January 18, 2018 – 6 months beyond the proof of claim deadline set in the Chapter 7 case and 9 months after repossession. These amended claims allege a now unsecured amount of $10,313.04 for the HHR and $10,478.23 for the Impala.
On May 16, 2017, the Debtors filed objections to both Claims #1 and #2 ("Objection #1 and Objection #2").
11:00 AM
Pursuant to 11 U.S.C. § 502, a claim of interest is deemed allowed unless a
party in interest objects. Therefore, a proof of claim shall constitute prima facie evidence of the validity and amount of claim if executed and filed in accordance with the Federal Rules of Bankruptcy Procedure ("FRBP") 3001(f). The filing of an objection to a proof of claim creates a dispute which is a contested matter within the meaning of FRBP 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. Lundell v. Anchor Const. Specialists, Inc. 223 F.3d 1035, 1039 (9th Cir. 2000).
The party objecting to the claim has the burden of going forward and of introducing evidence sufficient to rebut the presumption of validity. Little Loan Servicing, LP v. Garvida (In Re Gardiva), 347 B.R. 697, 706-07 (B.A.P. 9th Cir. 2006). Such evidence must be sufficient to demonstrate a true dispute and must have probative force equal to the contents of the claim. Lundell, F.3d at 1039.
FRBP 3002(c) states in relevant part that in a voluntary chapter 7 case "a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a)." Rule 3002(c) then sets forth five enumerated exceptions to the 90 day general rule. Under section 502(b)(9), a claim will not be allowed when the proof of claim is not timely filed, "except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) under the Federal rules of Bankruptcy Procedure."
Under the scope of authority set forth in section 704(5) of the Code, Debtors objected to Creditor’s proof of claim. Therefore, under § 502(a) the proof of claim is not initially allowed.
Debtors object to both Creditor’s Amended Proof of Claim #1 and Claim #2 on the basis that they were filed more than 6 months after the proof of claim deadline. Under 3002(c) of the FRBP, a proof of claim is timely filed for a voluntary Chapter 7 case if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a).
11:00 AM
While none of Rule 3002(c)’s enumerated exceptions to this general ninety-
day window apply, under 3002, as long as debtor has fair notice of the basis of the amended claim, creditor’s amended claim arose from the same transaction or occurrence as the timely-filed secured claim, and no prejudice will result to other parties in interest by allowing creditor to amend its secured claim, this Court is free to exercise its discretion in allowing the amendment of Claims #1 and #2.
Debtors further object to Creditor’s claims on the basis that the claims’ respective increases from $9,522.45 to $10,313 (Claim #1, the HHR) and $9,846.75 to
$10,478.23 (Claim #2, the Impala) are simply illogical. In assuming a sale at auction took place post-repossession of the vehicles, Debtors assert there are no logical grounds for an increase rather than a decrease in the claim amount ("Did Respondent sell the vehicle for a negative amount?")
Though it is far from clear that an auction in fact took place concerning either vehicle, Creditor provides little evidence substantiating its Amended Proof of Claims. The Amended Proof of Claims do not explain whether an auction took place, or how the claims simultaneously increased while become unsecured when during the earlies stages of the case, Creditor moved to repossess collateral of significant value.
Further, while the listed additional fees or expenses might conceivably explain the $9,522.45 to $10,478.23 (Claim #1) or $9,846.75 to $10,478.23 (Claim #2) increase between original and amended claims, none of the listed value amounts on either of Creditor’s Proof of Claim forms correlate with the gap. These actual discrepancies in amount and corresponding objections are almost certainly enough to demonstrate a "true dispute" under Lindell F.3d at 1039. Moreover, given that the Debtors do not have access to the information necessary to explain the situation, and Creditor has failed to address the situation through its proof of claim or by opposition to the instant motion, the Court will deems Creditor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h). Id.
For the foregoing reasons, the Court is inclined to SUSTAIN the objection to Claim 1.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Jose Sebastian Olvera Jr Represented By Nicholas M Wajda
Joint Debtor(s):
Angela Joanne Olvera Represented By Nicholas M Wajda
Movant(s):
Jose Sebastian Olvera Jr Represented By Nicholas M Wajda
Angela Joanne Olvera Represented By Nicholas M Wajda
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 61
07/11/2018
On September 17, 2016 ("Petition Date"), Jose and Angela Olvera ("Debtors") filed for Chapter 13 relief. On October 7, 2016 Ally Financial ("Creditor") filed a proof of claim ("Claim #1") in the amount of $9,522.45, $8,125.00 of which was secured by Debtor’s 2011 Chevrolet HHR ("HHR"). On October 10, 2016, Creditor filed a second secured proof of claim ("Claim #2) in the amount of $9,846.95,
$9,325.00 of which was secured by Debtor’s Chevrolet Impala ("Impala").
On March 2, 2017, Creditor was granted relief from the automatic stay and shortly thereafter repossessed the HHR and Impala. On or about March 8, 2017, Debtors filed a Notice of Conversion to Chapter 7 and this Court granted said conversion. On April 13, 2017, the Trustee filed a Notice of Assets and set a proof of claim deadline in the Chapter 7 Case for July 17, 2017. Creditor then filed their Amended Proof of Claims on January 18, 2018 – 6 months beyond the proof of claim deadline set in the Chapter 7 case and 9 months after repossession. These amended claims allege a now unsecured amount of $10,313.04 for the HHR and $10,478.23 for the Impala.
On May 16, 2017, the Debtors filed objections to both Claims #1 and #2 ("Objection #1 and Objection #2").
11:00 AM
Pursuant to 11 U.S.C. § 502, a claim of interest is deemed allowed unless a
party in interest objects. Therefore, a proof of claim shall constitute prima facie evidence of the validity and amount of claim if executed and filed in accordance with the Federal Rules of Bankruptcy Procedure ("FRBP") 3001(f). The filing of an objection to a proof of claim creates a dispute which is a contested matter within the meaning of FRBP 9014 and must be resolved after notice and opportunity for hearing upon a motion for relief. Lundell v. Anchor Const. Specialists, Inc. 223 F.3d 1035, 1039 (9th Cir. 2000).
The party objecting to the claim has the burden of going forward and of introducing evidence sufficient to rebut the presumption of validity. Little Loan Servicing, LP v. Garvida (In Re Gardiva), 347 B.R. 697, 706-07 (B.A.P. 9th Cir. 2006). Such evidence must be sufficient to demonstrate a true dispute and must have probative force equal to the contents of the claim. Lundell, F.3d at 1039.
FRBP 3002(c) states in relevant part that in a voluntary chapter 7 case "a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a)." Rule 3002(c) then sets forth five enumerated exceptions to the 90 day general rule. Under section 502(b)(9), a claim will not be allowed when the proof of claim is not timely filed, "except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) under the Federal rules of Bankruptcy Procedure."
Under the scope of authority set forth in section 704(5) of the Code, Debtors objected to Creditor’s proof of claim. Therefore, under § 502(a) the proof of claim is not initially allowed.
Debtors object to both Creditor’s Amended Proof of Claim #1 and Claim #2 on the basis that they were filed more than 6 months after the proof of claim deadline. Under 3002(c) of the FRBP, a proof of claim is timely filed for a voluntary Chapter 7 case if it is filed not later than 90 days after the first date set for the meeting of creditors called under 341(a).
11:00 AM
While none of Rule 3002(c)’s enumerated exceptions to this general ninety-
day window apply, under 3002, as long as debtor has fair notice of the basis of the amended claim, creditor’s amended claim arose from the same transaction or occurrence as the timely-filed secured claim, and no prejudice will result to other parties in interest by allowing creditor to amend its secured claim, this Court is free to exercise its discretion in allowing the amendment of Claims #1 and #2.
Debtors further object to Creditor’s claims on the basis that the claims’ respective increases from $9,522.45 to $10,313 (Claim #1, the HHR) and $9,846.75 to
$10,478.23 (Claim #2, the Impala) are simply illogical. In assuming a sale at auction took place post-repossession of the vehicles, Debtors assert there are no logical grounds for an increase rather than a decrease in the claim amount ("Did Respondent sell the vehicle for a negative amount?")
Though it is far from clear that an auction in fact took place concerning either vehicle, Creditor provides little evidence substantiating its Amended Proof of Claims. The Amended Proof of Claims do not explain whether an auction took place, or how the claims simultaneously increased while become unsecured when during the earlies stages of the case, Creditor moved to repossess collateral of significant value.
Further, while the listed additional fees or expenses might conceivably explain the $9,522.45 to $10,478.23 (Claim #1) or $9,846.75 to $10,478.23 (Claim #2) increase between original and amended claims, none of the listed value amounts on either of Creditor’s Proof of Claim forms correlate with the gap. These actual discrepancies in amount and corresponding objections are almost certainly enough to demonstrate a "true dispute" under Lindell F.3d at 1039. Moreover, given that the Debtors do not have access to the information necessary to explain the situation, and Creditor has failed to address the situation through its proof of claim or by opposition to the instant motion, the Court will deems Creditor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h). Id.
For the foregoing reasons, the Court is inclined to SUSTAIN the objection to Claim 2.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Jose Sebastian Olvera Jr Represented By Nicholas M Wajda
Joint Debtor(s):
Angela Joanne Olvera Represented By Nicholas M Wajda
Movant(s):
Jose Sebastian Olvera Jr Represented By Nicholas M Wajda
Angela Joanne Olvera Represented By Nicholas M Wajda
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 70
- NONE LISTED -
Debtor(s):
Hiep Huu Phan Represented By Toby T Tran
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
11:00 AM
Docket 63
7/11/18
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 4,260.01 Trustee Expenses: $ 231.35
Attorney Fees: $ 14,668.00 Attorney Costs: $ 356.04
Accountant Fees: $1,870.50 Accountant Costs: $254.60
Bond Payment: $17.87
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
11:00 AM
Debtor(s):
Denny L Rinehart Represented By Michael Smith Sundee M Teeple
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Rika Kido
11:00 AM
Docket 14
On January 11, 2018, Rolando & Florencia Reyes ("Debtors") filed a Chapter 7 voluntary petition. On April 23, 2018, Debtors received a discharge.
On May 15, 2018, Trustee filed an adversary complaint for avoidance of fraudulent transfers, disallowance of claims, unjust enrichment, declaratory relief, and turnover of property against Reginald Reyes, Debtors’ son. On May 16, 2018, Trustee filed an application to employ Shulman Hodges & Bastian LLP as general counsel for the estate. On May 30, 2018, Debtors filed an opposition to the application, arguing that such employment was premature and not in the best interests of the estate because there were no assets in the estate.
11 U.S.C. § 327(a) states:
11:00 AM
Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an
interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.
Regarding the standard for the employment of professional persons, one court has stated:
The trustee, subject to the court’s approval, has broad discretion in his selection of counsel and the terms of employment. There are, however, two threshold requirements that the trustee must satisfy. First, the trustee must demonstrate that the attorney proposed to be employed meets certain statutory standards. Second, the employment must be reasonably necessary.
In re Computer Learning Ctrs., Inc., 272 B.R. 897, 903 (Bankr. E.D. Va. 2001) (citations omitted).
Regarding whether the proposed employment is reasonable and necessary, one court has stated:
Thus, once the trustee meets the burden of demonstrating that an applicant for professional employment is qualified under § 327, the discretion of the bankruptcy court must be exercised in a way that it believes best serves the objectives of the bankruptcy system. Among the ultimate considerations for the bankruptcy courts in making these decisions must be the protection of the interests of the bankruptcy estate and its creditors, and the efficient, expeditious, and economical resolution of the bankruptcy proceeding.
11:00 AM
In re Harold & Williams Dev. Co., 977 F.2d 906, 910 (4th Cir. 1992).
Here, Debtors’ opposition appears to be based on a fundamental misunderstanding of how a bankruptcy case is administered. Generally speaking it is the role of a trustee to administer assets. When a trustee needs to bring legal claims or file non-routine motions, an attorney, with the requisite legal skill to assist the Trustee, may be necessary. Whether there are assets in the estate is irrelevant; the guiding question is, however, whether the trustee requires legal assistance to perform his responsibilities. Here, where Trustee has brought an adversary proceeding, it is clear that legal assistance is reasonably necessary.
The Court will GRANT the application.
APPEARANCES REQUIRED.
Debtor(s):
Rolando Carlos Reyes Represented By Walter Scott
Joint Debtor(s):
Florencia Aquino Reyes Represented By Walter Scott
Movant(s):
John P Pringle (TR) Represented By Lynda T Bui Brandon J Iskander
11:00 AM
Trustee(s):
John P Pringle (TR) Represented By Lynda T Bui Brandon J Iskander
11:00 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
Ryan James Masalcas Represented By Jenny L Doling Summer M Shaw
Movant(s):
Steven M Speier (TR) Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 17
On March 5, 2018, Jordan Amini ("Debtor") filed a Chapter 7 voluntary petition. On June 7, 2018, UST filed a motion for an extension of time to file a complaint objecting to discharge. UST asserts that Debtor previously operated a used car sales lot, and UST implies that business inventory may have been recently transferred to Debtor’s father business without being disclosed in the case commencement documents.
FED. R. BANKR. P. Rule 4004(a) states:
In a chapter 7 case, a complaint, or a motion under § 727(a)(8) or (9) of the Code, objecting to the debtor’s discharge shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). In a chapter 11 case, the complaint shall be filed no later than the first date set
11:00 AM
for the hearing on confirmation. In a chapter 13 case, a motion objecting to the debtor’s discharge under § 1328(f) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). At least 28 days’ notice of the time so fixed shall be given to the United States trustee and all creditors as provided in Rule 2002(f) and (k) and to the trustee and the trustee’s attorney.
And FED. R. BANKR. P. Rule 4004(b) states:
On motion of any party in interest, after notice and hearing, the court may for cause extend the time to object to discharge. Except as provided in subdivision (b)(2), the motion shall be filed before the time has expired.
A motion to extent the time to object to discharge may be filed after the time for objection has expired and before discharge is granted if (A) the objection is based on facts that, if learned after the discharge, would provide a basis for revocation under § 727(d) of the Code, and (B) the movant did not have knowledge of those facts in time to permit an objection. The motion shall be filed promptly after the movant discovers the facts on which the objection is based.
Here, the delay in providing information adequate to assess the financial circumstances of Debtor constitutes sufficient cause to extend the deadline. See COLLIER ON BANKRUPTCY ¶ 4004.03[2] (16th ed. 2013) ("A debtor’s delays in responding to discovery may be sufficient cause. Obviously, a delay in the meeting of creditors to a date close to or after the deadline may constitute such cause.") (citing In re McCormack, 244 B.R. 203 (Bankr. D. Conn. 2000)).
Moreover, Debtor’s failure to oppose may be deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
11:00 AM
The Court is inclined to GRANT the motion and EXTEND the deadline to file an objection to discharge until August 10, 2018.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jordan Halston Amini Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:16-01199 Revere Financial Corporation v. Bank of Southern California, N.A.
EH
Docket 60
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Bank of Southern California, N.A. Represented By
Kathryn M.S. Catherwood
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01190 Speier v. U.S. Trust, Bank of America Private Wealth Managem
From: 11/8/17, 2/14/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Hilary D Hill Represented By
Matthew D Resnik David Brian Lally
Defendant(s):
U.S. Trust, Bank of America Private Represented By
Benjamin Nachimson
Hilary D Hill Represented By
David Brian Lally
Plaintiff(s):
Steven M Speier Represented By Robert P Goe Donald Reid
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Elizabeth A LaRocque
2:00 PM
Adv#: 6:18-01102 PRINGLE v. Capital One Bank (USA), National Association
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Capital One Bank (USA), National Pro Se
Plaintiff(s):
JOHN PRINGLE Represented By Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
HOLDING DATE
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18
EH
Docket 44
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
From: 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18
Also #18 EH
Docket 26
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By
2:00 PM
Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
(Holding Date)
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18
Also #17 EH
Docket 13
NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
2:00 PM
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
From: 1/10/18, 6/6/18 Also #20
EH
Docket 19
07/11/2018
On October 8, 2015, Angelo Gumbs ("Plaintiff") filed a Complaint in the Superior Court of Los Angeles against the debtor, Richard Earl Davis, Jr. ("Debtor" or "Defendant") asserting claims for Fraud – Intentional Misrepresentation, Fraud – Concealment, and Fraud – Promise Without Intent to Perform (the "State Action").
On April 14, 2016, the Debtor filed his petition for chapter 7 relief.
Subsequently, the State Action was stayed pending proceedings in the bankruptcy court. On March 30, 2017, the Plaintiff filed his Complaint to determine dischargeability pursuant to § 523(a)(2) ("Complaint"). On December 7, 2017, the Plaintiff filed a Motion for Default Judgment ("Motion") against the Debtor.
However, on the date of the hearing on the Motion, the Debtor filed an Answer and the Motion was continued to provide Plaintiff an opportunity to supplement the Motion and/or to provide an opportunity for Plaintiff to move to strike the Answer. On May 9, 2018, the Plaintiff filed a Motion to Strike the Answer and for Entry of Default ("Strike Motion"). At the hearing on May 30, 2018, the Court granted the Strike Motion, striking the answer and ordering entry of default.
At the continued June 6, 2018, hearing, the Court required that the Plaintiff (1) lodge the order on the Motion to Strike; (2) file the requested State Court documents;
file points and authorities; and (4) provide notice of the continuance of the hearing
2:00 PM
on the Motion for Default Judgment and Status Conference, and of the Court’s new deadlines. The Plaintiff has complied with the Court’s requirements. The Court now turns to the merits of the Motion.
The Motion is supported by the Affidavit of Kandis Gumbs, the Plaintiff’s wife, and by the Declaration of the Plaintiff’s counsel along with exhibits attached to, and authenticated by the Plaintiff’s Wife and Counsel. The Court admits all of the evidence submitted. Additionally, the Court deems as admitted the statements included in the Plaintiff’s "Requests for Admission, Set One" to which Plaintiff received no responses by Debtor after his filing of an Answer. (Holdren Decl. at Ex. C)
DISCUSSION
Entry of Default
Federal Rule of Civil Procedure 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Per LBR 7055-1(b)(1), a motion for entry of default judgment shall contain the following:
When and against what party default was entered
Whether defaulting party is an infant or incompetent person – (N/A)
Whether the defaulting party is currently on active duty – (N/A)
Whether notice has been served on defaulting party, if required by FRCP 55(b)(2)
As to the entry of default, the Court has granted the Plaintiff’s Motion to Strike and has directed the clerk of Court to enter default against the Defendant.
2:00 PM
Admissions
Pursuant to FRBP 7008(b)(6), failure to deny an allegation of the Complaint where a responsive pleading is required constitutes an admission of the allegation.
Default Judgment
Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute considering material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the FRCP favoring decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Proper Service of Summons and Complaint
As detailed above, the Defendant late-filed an Answer to the Complaint but later failed to respond to Plaintiff’s discovery requests or to his requests to meet and confer. For these reasons, the Answer was struck. Additionally, the Motion was properly served on Debtor and he has failed to file opposition or response. Plaintiff has fulfilled his obligations regarding due process.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); "The defendant, by his default, admits the plaintiff's well-pleaded allegations of facts, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established." Nishimatsu Construction Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (emphasis added); Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.
1978); Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1278(11th Cir.
2:00 PM
2005) (do not have to take as true facts that are not well-pleaded or conclusions of law).
As a threshold matter, the Court finding that the factual allegations of the State Action are identical to the facts alleged in the Complaint, considers whether the claims asserted in the State Action are nondischargeable as a matter of law, prior to examining whether the allegations suffice to require entry of judgment under § 523(a) (2).
First, as to "Fraud -Intentional Misrepresentation", Ninth Circuit case law confirms that the elements of fraud under California law match the ones under § 523(a)(2)(A). Younie v. Gonya (In re Younie), 211 B.R. 367, 373–74 (9th Cir. BAP 1997) ("The elements of § 523(a)(2)(A) ‘mirror the elements of common law fraud’ and match those for actual fraud under California law."). See also Baldwin v.
Kilpatrick (In re Baldwin), 245 B.R. 131, 134 (9th Cir. BAP 2000). Second, as to "Concealment", it is "well recognized that silence, or the concealment of a material fact, can be the basis of a false impression which creates a misrepresentation actionable under § 523(a)(2)(A)." In re Evans, 181 B.R. 508, 514-515 (Bankr.S.D.Cal.1995); see In re Daquila, 2011 WL 3300197 (9th Cir. BAP Feb. 28, 2011) ("A debtor's failure to disclose material facts constitutes a fraudulent omission under § 523(a)(2)(A) if the debtor was under a duty to disclose and possessed an intent to deceive."); In re Miller, 310 B.R. 185, 196 (Bankr.C.D.Cal.2004) ("The concealment or omission of material facts that a party has a duty to disclose can support the nondischargeability of a debt on the grounds of actual fraud."). In re Davis, 486 B.R. 182, 191 (Bankr. N.D. Cal. 2013), decision supplemented, No.
10-74245 MEH, 2013 WL 2304684 (Bankr. N.D. Cal. May 24, 2013).
Finally, as to "Fraud – Concealment, and Fraud – Promise Without Intent to Perform", Promissory fraud is a subspecies of the action for fraud and deceit. Downey Venture v. LMI Ins. Co., 66 Cal.App.4th 478, 510, 78 Cal.Rptr.2d 142, 161 (1998).
Under California law, the elements of promissory fraud are identical to the elements of common law fraud, when the misrepresentation at issue is a promise made without intent to perform. In re Tobin, 258 B.R. 199, 203 (9th Cir. BAP 2001) (internal
2:00 PM
citations omitted). Thus, under any of the theories advanced by Plaintiff in the State Action, a finding of liability would also be sufficient to establish nondischargeability pursuant to § 523(a)(2).
Fraud pursuant to §523(a)(2)
In order to maintain a claim for actual fraud pursuant to § 523(a)(2), the plaintiff must provide sufficient factual content from which a court can derive that:
the debtor made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations, and (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975).
The Declaration of Kandis Gumbs adequately details that the Debtor made the following misrepresentations, in addition to other misrepresentations not detailed here:
Debtor held himself out to Plaintiff and his wife as a baseball agent certified by the Major League Baseball Players Association and that he could represent Plaintiff if signed. (Gumbs Decl. ¶4);
Debtor asked Plaintiff and wife to purchase the rights to a documentary that would feature the Plaintiff for $15,000 (Gumbs Decl. ¶8);
Plaintiff and wife were told (the Court infers that they were told by Debtor) to pay charges for an official website which was never completed (Id. ¶¶9 and 11);
Plaintiff was charged for clothing for a photo shoot in the amount of $500 which he never received (Id. ¶10 and 11);
Defendant stated that he needed to produce broadcasting quality commercials at $500 each, for a total of $2,000 which the Court infers were not produced (Id. ¶11);
Defendant sought a loan from Plaintiff to stay at a hotel in Florida for two
2:00 PM
nights and did not repay the loan (Id. ¶12);
Debtor misrepresented that he loaned $10,000 to Plaintiff and sought reimbursement which the Plaintiff and his wife paid but in reality the $10,000 had never been deposited and Debtor never returned the funds;
Debtor agreed to purchase a 2011 Camaro from the Plaintiff and to make payments on the vehicle but instead of making the payments, instead sold the vehicle and purchased a new vehicle (Id. ¶15);
Debtor invoiced Plaintiff $11,015 for an alleged loan, which Plaintiff and wife paid to Debtor on February 26, 2012. However, the Debtors reviewed their accounts and found that there had been no loan as asserted by Plaintiff. (Id. ¶ 21);
Debtor proposed an investment deal with a third party which Plaintiff and wife later discovered was a scam. The Plaintiff and wife were induced to invest
$45,151 for the "investment". (Id. ¶22).
Based on the nature of the misrepresentations outlined above and in the Affidavit of Kandis Gumbs, and the statements deemed admitted by the Debtor for failing to respond to the Plaintiff’s interrogatories, the Court finds that Debtor knew his statements to the Plaintiff and his wife regarding services he was performing, loans he allegedly made, investments he allegedly set up, and goods he allegedly purchased for the Plaintiff, were false and that the Debtor knew the statements and representations were false when made. Further the Affidavit supports a finding that the Plaintiff and his wife relied on the Debtor’s misrepresentations when they paid Debtor monies for the various goods, services and investments they believed would yield them value, and finally, that as outlined in the Gumbs Declaration and attached Exhibits, the Plaintiff and his wife have provided evidence that they sustained damages as a proximate result of the Plaintiff’s misrepresentations in the amount of approximately $150,000.
The possibility of a dispute considering material facts
Defendant was properly served with the summons and complaint. Defendant’s answer was struck by this Court. The Defendant failed to respond to either the Motion to Strike his Answer or to the instant Motion for a Default Judgment and has failed to appear at Status Conferences or to respond to Plaintiff’s discovery requests or requests
2:00 PM
to meet and confer. Therefore, no dispute of material facts precludes entry of default judgment.
Whether the default was due to excusable neglect
Defendant had the opportunity to file opposition to the instant Motion and failed to do so. There has been no indication that any excuse exists for the Defendant’s nonresponsiveness. Thus, the Court finds that the default was not due to excusable neglect and may be granted.
The strong policy underlying the FRCP favoring decision on the merits Although default judgments are ordinarily disfavored, termination of a case
before hearing the merits is allowed when a defendant fails to defend an action under Fed. R. Civ. P. 55. Here, it appears that Defendant has abandoned his defense against the claims of Plaintiff. However, the Court, having required and received evidence to support the claims, finds that the merits have been adequately supported and that entry of a default judgment as to nondischargeability is warranted. Thus, the instant judgment represents a decision on the merits.
TENTATIVE RULING
Based on the foregoing, the Motion is GRANTED. The Court is inclined to enter a judgment of nondischargeability as to the claims asserted in the State Action, which represent a debt of approximately $150,000.
APPEARANCES REQUIRED.
2:00 PM
06/06/2018
On May 9, 2018, Plaintiffs filed a Motion to Strike Answer and enter Default. On May 30, 2018, the Court at the hearing issued a tentative ruling which was adopted as the final ruling granting the Motion. Plaintiffs’ counsel was directed to lodge an order. To date, Plaintiffs’ counsel has not lodged an order. Thus, a ruling on the Motion for Default Judgment would be premature given that the Answer has yet to be formally stricken, and default entered.
Additionally, in the Court’s January 10, 2018, tentative ruling, the Court required Plaintiffs to provide "the underlying state court documents (e.g. the state court complaint and judgment) which are essential to final ruling on the Complaint." Finally, the Court indicated that Counsel had not included points and authorities to indicate whether the motion was being made pursuant to collateral estoppel principles or alternatively, setting forth how the evidence provided satisfies the §523(a)(2) standard.
The Court is inclined to CONTINUE the hearing on the Motion for Default Judgment and Status Conference to July 11, 2018, at 2:00 p.m., for Plaintiffs to (1) lodge the order on the Motion to Strike; (2) file the requested State Court documents; (3) file points and authorities; and (4) provide notice of the continuance of the hearing on the Motion for Default Judgment and Status Conference, and of the Court’s new deadlines.
The Plaintiffs’ supplemental filings shall be due on or before June 20, 2018. Any opposition shall be due on or before June 27, 2018, and any reply shall be due on or before July 5, 2018.
2:00 PM
APPEARANCES WAIVED.
01/10/2018
TENTATIVE RULING
At the hearing on the Plaintiff’s prior Motion for Default Judgment, the Court’s tentative ruling provided, in pertinent part, as follows:
Plaintiff seeks default judgment be entered against Defendant Richard Earl Davis, Jr. (the "Debtor"). Service of the Motion AND of the Summons and Complaint were all effectuated on the Debtor at "2280 Market Street #220 in Riverside, CA". However, the Debtor’s bankruptcy petition indicates his place of residence as "9325 Sunridge Drive in Riverside, CA 92508".
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy petition. Deadlines shall be reset accordingly.
An alias summons was issued and the Plaintiff filed a proof of service indicating that the Alias Summons was executed. The instant Motion for
2:00 PM
Default Judgment was then filed on December 7, 2017. Both Proofs of Service indicate that the Debtor was now served at "9324 Sunridge Drive in Riverside, CA" Again, in a situation where the Debtor/Defendant is nonresponsive, the Plaintiff’s ongoing failure to serve the Debtor at the correct address creates a due process issue which prevents this case from moving forward.
Separately, although the Debtor has disclosed the debt owed to Plaintiff in the amount of $150,000 in his Schedule E/F pursuant to a State Court Judgment, the Court notes that the Plaintiff has failed to attach the underlying state court documents (e.g. the state court complaint and judgment) which are essential to final ruling on the Complaint. Additionally, the Plaintiff has not included points and authorities to indicate whether the motion is made under collateral estoppel principles.
The Court’s tentative ruling is to DENY the Motion without prejudice. Movant to lodge an order denying the motion and requesting that the Court issue an alias summons for Movant to serve the summons and complaint at the Debtor’s residence as indicated on the bankruptcy petition. Deadlines shall be reset accordingly.
Ongoing failure to correctly serve documents on the Debtor correctly may result in sanctions.
APPEARANCES REQUIRED.
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
2:00 PM
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Movant(s):
Angelo M Gumbs Represented By Alexander B Boris Kenneth A Holdren
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris Kenneth A Holdren
Kandis Gumbs Represented By Alexander B Boris
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01066 Gumbs et al v. Davis, Jr et al
From: 8/30/17, 11/1/17, 1/10/18, 6/6/18 Also #19
EH
Docket 1
06/06/18
APPEARANCES WAIVED. Status Conference continued to July 11, 2018, at 2:00 p.m. See matter No. 10.
Debtor(s):
Richard Earl Davis Jr Represented By Todd L Turoci
Defendant(s):
Richard Earl Davis Jr Pro Se
Two6 Sports Management Pro Se
Plaintiff(s):
Angelo M Gumbs Represented By Alexander B Boris Kenneth A Holdren
Kandis Gumbs Represented By Alexander B Boris
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:17-01129 Hadra et al v. Mendez et al
From: 9/13/17, 12/13/17, 4/11/18, 6/6/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Defendant(s):
William A. Mendez Represented By Thomas J Polis
Shawna D Mendez Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Plaintiff(s):
Andrew C. Hadra Represented By Peter W Lianides Alan Droste
2:00 PM
Vertical Partners LLC Represented By Peter W Lianides Alan Droste
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
EH
Docket 13
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
2:00 PM
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
(A) by Wayne W Suojanen on behalf of Mina Farah against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18 Also #22
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
EH
Docket 13
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
2:00 PM
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
(A) by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18 Also #24
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
From: 5/9/18, 5/16/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
2:00 PM
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
MOVANT: JOE R GARCIA
From: 7/10/18 EH
Docket 13
7/10/2018
The Court finding that the Debtor having failed to serve Citimortgage to the attention of an officer and via certified mail as required pursuant to Rule 7004(h), the hearing on the Motion shall be CONTINUED. Additionally, on page 1 of the Motion, Citi was not indicated as the party entitled to Notice. Finally, the Declaration attached is from Debtor’s counsel, not from the Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Movant(s):
Joe R Garcia Represented By
Neil R Hedtke
2:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: MIRIAM TORRES
From: 7/10/18 EH
Docket 11
7/10/2018
A comparison between the Debtor’s Schedules I and J for the current and prior case does not substantiate the additional income from roommates asserted by the Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Miriam Torres Represented By Paul Y Lee
Movant(s):
Miriam Torres Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 8
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
2:00 PM
EH
Docket 9
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
2:00 PM
EH
Docket 10
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
Also #2 EH
Docket 208
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17, 2/28/18, 3/21/18, 6/20/18
Also #1 EH
Docket 1
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Adv#: 6:18-01107 Bitzer v. OCWEN LOAN SERVICING, LLC et al
NATIONAL TRUST COMPANY. (Fee Not Required). Nature of Suit: (21 (Validity, priority or extent of lien or other interest in property)),(91 (Declaratory judgment)) (Coburn, H)
EH
Docket 1
Debtor(s):
David Paul Bitzer Represented By
H Christopher Coburn
Defendant(s):
OCWEN LOAN SERVICING, LLC Pro Se DEUTSCHE BANK NATIONAL Pro Se
Plaintiff(s):
David Paul Bitzer Represented By
H Christopher Coburn
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 60
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 45
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 24
Debtor(s):
William Bennett Averett Represented By John D Monte
Joint Debtor(s):
Nora Lee Averett Represented By John D Monte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Lynette Kathryn Beaver Represented By Anerio V Altman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Charles Henry Sacayan Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Catherine Angela McNicholas Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Michael D Hayden II Represented By Sunita N Sood
Joint Debtor(s):
Joanna Queen Hayden Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Richard Garavito Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Robert Justice Morse Jr. Represented By Robert W Ripley
Joint Debtor(s):
Helen Julia Morse Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Oscar Franco Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Edubijes Franco Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Marco Tulio Magana Represented By Daniel King
Joint Debtor(s):
Gloria Louisa Magana Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Kevin Eugene Martin Represented By Michael E Clark
Joint Debtor(s):
Francisca Chavez-Martin Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Patricia Ann Cook Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Glenda Faye Price Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Adan Duarte Represented By
William E Windham
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Karen Patricia Boyd Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Susan Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Adam Casey Addison Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jose F Mejia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
David Bruce Bremer Represented By Paul Y Lee
Joint Debtor(s):
Tina Marie Bremer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
John Ryan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Lawrence A McCoy Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Elizabeth L Taufaao Represented By
Benjamin A Yrungaray
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Xavier Cristobal Luna Represented By Roberto Gil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Bessie Johnson Desroches Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ralph O Dieter Represented By Stephen R Wade
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Roberto Hernandez Represented By Paul Y Lee
Joint Debtor(s):
Christina M Hernandez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jose M. Cortez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Patricia Solis-Alvarez Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 277
Debtor(s):
Jose N Recinos Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Patricia Recinos Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 43
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:30 AM
EH
Docket 12
Debtor(s):
Amber Michelle Bradley Represented By
Neelamjeet K Kahlon-Pfister Cory T Salisbury
Trustee(s):
Robert Whitmore (TR) Pro Se
1:00 PM
Docket 179
Debtor(s):
Jose Vasquez Hernandez Represented By Manfred Schroer
Joint Debtor(s):
Ana Maria Hernandez Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 277
Debtor(s):
Fernando Rodriguez Represented By Tamar Terzian
Joint Debtor(s):
Gabriela Rodriguez Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
Debtor(s):
Rosa Alvarez Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 151
Debtor(s):
Claudia Veronica Reyes-Olivares Represented By
Anthony E Contreras
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Araceli Canela Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 135
Debtor(s):
Pyongil Cha Represented By
Parisa Fishback David Brian Lally Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 81
Debtor(s):
Kevin Ray Miller Represented By
M Wayne Tucker
Joint Debtor(s):
Martina Miller Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 171
Debtor(s):
Corey J. McKeever Represented By Lazaro E Fernandez
Joint Debtor(s):
Lucy C. McKeever Represented By Lazaro E Fernandez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Philip J. Adams Represented By
Anthony G Lagomarsino
Joint Debtor(s):
Kathy M. Adams Represented By
Anthony G Lagomarsino
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 183
Debtor(s):
Ronald Andrew Lopez Represented By David Lozano
Joint Debtor(s):
Lisa Darlene Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
John Douglas Bacon Represented By Andrew Moher
Joint Debtor(s):
Monica Marie Bacon Represented By Andrew Moher
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 96
Debtor(s):
Brian Bulos Khoury Represented By Marc A Duxbury
Joint Debtor(s):
Christine Khoury Represented By Marc A Duxbury
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Desmond Anthony Townsend Represented By April E Roberts
Joint Debtor(s):
Lillian Carmen Townsend Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
Debtor(s):
Robert J. Holcomb Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Senorina Rivera Holcomb Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Jeanette Johnson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 153
Debtor(s):
Rigoberto Baez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 73
Debtor(s):
Jesus Garcia Represented By
Luis G Torres
Joint Debtor(s):
Olivia Garcia Represented By
Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
Debtor(s):
Robert B Eppley Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
John McCabe Represented By Kirk A Laron
Joint Debtor(s):
Elena McCabe Represented By Kirk A Laron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 175
Debtor(s):
Francisco Javier Medina Represented By Tamar Terzian
Joint Debtor(s):
Maria Guadalupe Medina Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
Debtor(s):
Rebecca Lee Shaffer Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jesus Anthony Hernandez Represented By Erik Clark Michael E Clark Barry E Borowitz
Joint Debtor(s):
Lenore Esther Hernandez Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 173
Debtor(s):
Enrique Artemio Barba Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 104
Debtor(s):
Gildardo R Herrera Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Stephanie D Herrera Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
Debtor(s):
Carlos Vincent Valdez Represented By Gregory M Shanfeld
Joint Debtor(s):
Grace G. Valdez Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 153
Debtor(s):
Clarence White Represented By Steven A Wolvek
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Manuel Sandoval Gonzalez Represented By Dana Travis
Joint Debtor(s):
Andrea Michelle Gonzalez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 102
Debtor(s):
James Edward Lishko Jr. Represented By Christopher J Langley
Joint Debtor(s):
Debbie Sue Lishko Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Antonio Lopez Represented By Julie J Villalobos
Joint Debtor(s):
Angelica Duenas Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 217
Debtor(s):
Mildred Goodridge Crawford Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
Debtor(s):
Jose David Galarza Represented By Tyson Takeuchi Scott Kosner
Joint Debtor(s):
Catalina Galarza Represented By Tyson Takeuchi Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Alfredo Garcia-Nunez Represented By Leonard Pena
Joint Debtor(s):
Josefina Lopes-Lisea Represented By Leonard Pena
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 106
Debtor(s):
Dana Rene Hampton Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Hector M Rodriguez Represented By Michael A Younge
Joint Debtor(s):
Mary L Rodriguez Represented By Michael A Younge
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 133
Debtor(s):
Mitchell Jeffrey Summers Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Terra Carolina Summers Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Jacqulyn Ann Deniston Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 84
Debtor(s):
Robert Warren Gillam Represented By James P Doan
Joint Debtor(s):
Diana Lynn Gillam Represented By James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 133
Debtor(s):
Jacob J Cannon Represented By Lisa H Robinson John F Brady
Joint Debtor(s):
Danielle M Cannon Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 71
Debtor(s):
Gary Lee Edwards Represented By
Bryant C MacDonald
Joint Debtor(s):
Rose Marie Edwards Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
Debtor(s):
Angel K. Horn Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 74
Debtor(s):
Robert Anthony Maruffo Represented By Carey C Pickford
Joint Debtor(s):
Allison Marie Maruffo Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 103
Debtor(s):
Agnes Smith Represented By
James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 77
Debtor(s):
Danah Merrie Collier Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Geofrey J Kitilya Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 148
Debtor(s):
Robert Wayne Cook Sr. Represented By Steven A Alpert
Joint Debtor(s):
Kelly Danielle Cook Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 206
Debtor(s):
Taylor J. Bretz Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
Arnel De Castro Represented By Paul Y Lee
Joint Debtor(s):
Anna De Castro Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
Debtor(s):
Raafat Georgy Represented By
Joseph R Manning Jr
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 114
Debtor(s):
Silvia Vargas Represented By
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 107
Debtor(s):
Maricella Garcia Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 97
Debtor(s):
Carmen Lucya Mendez Represented By Sara E Razavi
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
George Henry Samuelsen Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Alexis Justine Brooks Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Ricardo Pimentel Represented By Tamar Terzian
Joint Debtor(s):
Maria Pimentel Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
William J English Represented By Eric C Morris
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 71
Debtor(s):
David J Macias Represented By Marjorie M Johnson
Joint Debtor(s):
Martha Macias Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Jeremiah Johnson Nellis Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 95
Debtor(s):
Alex Soto Represented By
Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Learoyd E. Frank Represented By Carey C Pickford
Joint Debtor(s):
Anila S. Frank Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
CHRISTY LYNN FOWLER Represented By Christian U Anyiam
Joint Debtor(s):
MARK DAWAYNE FOWLER II Represented By
Christian U Anyiam
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Ernesto Alonso Gomez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Kenneth Mcewing Huff Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
Debtor(s):
Rosalie Estella Crouch Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 113
Debtor(s):
Troy Gene Thomas Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Becky L Thomas Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jose Luis Gutierrez Represented By Kelly Warren
Joint Debtor(s):
Patricia Gutierrez Represented By Kelly Warren
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 169
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 115
Debtor(s):
Donnie Edward Southerland Represented By Dana Travis
Joint Debtor(s):
Andrea Marie Southerland Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 93
Debtor(s):
Dennis Williams Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Sheila Marie Dejesa Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 96
Debtor(s):
Edward Jennings Kidwell Represented By Tyson Takeuchi Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
Reynaldo Jaimes Merlan Represented By Tamar Terzian
Joint Debtor(s):
Maria D Merlan Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 122
Debtor(s):
Martin Caballero Represented By Luis G Torres
Joint Debtor(s):
Clementina Caballero Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 121
Debtor(s):
Rosa Partida Represented By
Mathew Alden
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Anna M Loconto Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 76
Debtor(s):
Frederick Rudy Deveau Represented By Christopher J Langley
Joint Debtor(s):
Wendy Jo Deveau Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
John W Ambrose Jr Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
Ryan Scott Williams Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 77
Debtor(s):
Imelda Tapia Represented By
Anthony Wilaras
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 70
Debtor(s):
Adam Max Thewes Represented By Steven A Alpert
Joint Debtor(s):
Kristine Ann Thewes Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Raul Ruelas Represented By
Patricia M Ashcraft
Joint Debtor(s):
Laura Ruelas Represented By
Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 77
Debtor(s):
Ruben Sotelo Represented By
Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 148
Debtor(s):
James Lange Represented By
Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Michelle Lange Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
Richard Maher Represented By Christopher Hewitt
Joint Debtor(s):
Elena Maher Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Karry Howard Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
Michelle Ann Maki Represented By Joel M Feinstein
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 63
Debtor(s):
Wilfred David Pascual Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 218
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
Lamar Surpell Bell Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 110
Debtor(s):
Michael Lee Barnes Represented By Todd L Turoci
Joint Debtor(s):
Belinda Ann Barnes Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 106
Debtor(s):
Rula Nino Represented By
Devin Sawdayi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 122
Debtor(s):
Bryan K. Harrison Represented By April E Roberts
Joint Debtor(s):
Dawn Harrison Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
Debtor(s):
Jesus Padilla Simental Represented By Bryn C Deb
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 139
Debtor(s):
Keith Raynard Burton Represented By
Rabin J Pournazarian
Joint Debtor(s):
Brigette Michelle Burton Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Gary Dewain Pounds Represented By Michael Jay Berger
Joint Debtor(s):
Mary Margaret Pounds Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 82
Debtor(s):
Maria E Carranza Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Alberto H. Garcia Represented By Carey C Pickford
Joint Debtor(s):
Gina Caceres Represented By
Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Robert Wolf Represented By
Todd L Turoci
Joint Debtor(s):
Jennifer Collean Wolf Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jose Agustin Nuno-Anaya Represented By April E Roberts
Joint Debtor(s):
Nelly Nuno Represented By
April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 157
Debtor(s):
Christopher John Helme Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
Debtor(s):
Joseph Levi Riddle Represented By
L. Tegan Rodkey
Joint Debtor(s):
Jessica Sue Riddle Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Lenora L Dawson Represented By Jennifer M Grant
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
Debtor(s):
Claudie Gene West Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Jesus Samano Landa Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Gabriel Eduardo Dominguez Represented By Dana Travis
Joint Debtor(s):
Martha Ruth Dominguez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 104
Debtor(s):
Jesus Manuel Gomez Represented By Dana Travis
Joint Debtor(s):
Maria Gomez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Edilberto Aguirre-Mendoza Represented By Matthew D. Resnik
Joint Debtor(s):
Alba Zacarias-Cebrero Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 81
Debtor(s):
Leslie A. Larson Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
David L Aston Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Evelyn A Aston Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 126
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Miguel A Cervantes Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 183
Debtor(s):
Jose Ceja Jr Represented By
Dana Travis
Joint Debtor(s):
Chasity Ann Ceja Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Presciliano Perez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Linda E Holcomb Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 109
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Milton Y Diaz Represented By Thomas Watkins
Joint Debtor(s):
Maria Alejandra Diaz Represented By Thomas Watkins
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
David Wark Represented By
Christopher Hewitt
Joint Debtor(s):
Michelle Wark Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 81
Debtor(s):
Christopher Lee Sumners Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
Debtor(s):
Ramon Urrutia Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Juan A Hernandez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Julio Guzman Represented By Phillip Myer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 192
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 87
Debtor(s):
Bennea Cynthia Travis Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Ann Perez Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 95
Debtor(s):
Scott Allan Oswald Represented By Richard Lynn Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Michael O'Cull Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
John Luther Peterson Represented By Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 95
Debtor(s):
William R Parker Represented By Julie J Villalobos
Joint Debtor(s):
Cheryl Parker Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 93
Debtor(s):
Lucianna P Wais Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Elgitha B Baldonado-Ranosa Represented By Charles W Daff
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Allen J Sheerin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 82
Debtor(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Rafael Bello Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Delkys Hyde Represented By
David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
John Stephen Puddy Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 89
Debtor(s):
Martin D Woods Represented By
M Wayne Tucker
Joint Debtor(s):
Shante L Woods Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
Brenda Morgan Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Joe Martinez Jr. Represented By David Lozano
Joint Debtor(s):
Sandra Lynette Martinez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
Debtor(s):
Chris Alvarado Espinoza Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Shari Lynn Finch Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 104
Debtor(s):
Qurieno De Guchy Sr. Represented By Gary S Saunders
Joint Debtor(s):
Jessica Nerida De Guchy Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 124
Debtor(s):
Angelica Teresa Anguiano Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 171
Debtor(s):
Michael Brian Goodrich Sr. Represented By Christopher J Langley
Joint Debtor(s):
Kimberly JoAnn Carter Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
David W Monestero Represented By Julie J Villalobos
Joint Debtor(s):
Magdalena Monestero Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 139
Debtor(s):
Cresencio Ramirez Ramirez Represented By John F Brady
Joint Debtor(s):
Maria Olga Ramirez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
David P. Carpenter Represented By Carey C Pickford
Joint Debtor(s):
Cresencia M. Carpenter Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
Maria C. Ignacio Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Rodney Lenn Cole Represented By Nicholas M Wajda
Joint Debtor(s):
Annalue Cole Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 110
Debtor(s):
Homer Wilson Represented By Leonard J Cravens
Joint Debtor(s):
Evelyn Wilson Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Joe Roger Montes Represented By Stephen R Wade
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 111
Debtor(s):
Randall Meier Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Rudolph Mike Montoya Represented By
James Geoffrey Beirne
Joint Debtor(s):
Rosemary Montoya Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Frank Munoz Represented By
Alon Darvish
Joint Debtor(s):
Nanci Jessie Munoz Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 187
Debtor(s):
Eduardo Javier Meza Represented By Dana Travis
Joint Debtor(s):
Margaret Ruth Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
Debtor(s):
Genaro Flores Represented By Luis G Torres
Joint Debtor(s):
Salome Flores Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 123
Debtor(s):
Zulu A Ali Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Jesus Aguilar Represented By
Luis G Torres
Joint Debtor(s):
Maria G Aguilar Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Torri Walker Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Juan M Madueno Carrizoza Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
Melinda Kay Allen Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Jose R. Gonzalez Represented By Juanita V Miller
Joint Debtor(s):
Maria S. Gonzalez Represented By Juanita V Miller
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 88
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 81
Debtor(s):
Kevin Kim Nettles Represented By
M Wayne Tucker
Joint Debtor(s):
Sara Margaret Nettles Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Rama Cokrohadian Suhari Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Roselia Hernandez Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Amber Larae Holmes Represented By Yoon O Ham
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Debra Denise Barr Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 156
Debtor(s):
Chi Kan Yu Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Mark A. Aceves Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 79
Debtor(s):
Shyla L. Montgomery Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Michael J. Waters Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 121
Debtor(s):
Jonathan William Nicastro Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 111
Debtor(s):
Donald Leroy Woodruff Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Cecilia Orozco Represented By Majid Safaie
Joint Debtor(s):
Sergio Orozco Represented By Majid Safaie
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
Helen Kanari Lewis Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Melvin T. Marks Represented By
James D. Hornbuckle
Joint Debtor(s):
Maria S Peponas Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Nicolas Garcia Ramos Represented By Luis G Torres
Joint Debtor(s):
Rosadelia Ramos Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 63
Debtor(s):
Adolfo Gonzalez Represented By Luis G Torres
Joint Debtor(s):
Angelica Gonzalez Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Leonard Leroy Crowell Represented By Dana Travis
Joint Debtor(s):
Carol Eckstrom Crowell Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Robert John Mapstead Represented By Dana Travis
Joint Debtor(s):
Belinda Alba Mapstead Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
Charles Edward Horton Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 116
Debtor(s):
Joseph Robert Byrne Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Hillary Allyne Byrne Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Gary Janssen Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
Debtor(s):
Laurie L Burns Represented By Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 110
Debtor(s):
ROBERT A HAGUE Represented By Manfred Schroer
Joint Debtor(s):
DIANNE L HAGUE Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 129
Debtor(s):
Garan Bales Represented By
Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Juan Figueroa Represented By
Inez Tinoco-Vaca
Joint Debtor(s):
Nancy Figueroa Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Allan Martin Borgen Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Maria Lourdes Magallon Represented By Leonard Pena
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Dwayne M Kollmar Represented By Gary J Holt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Ernestine Steppes Represented By Mathew Alden
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Michael Joseph Fodor Represented By Michael R Totaro Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Ryan J. Watson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Joint Debtor(s):
Elsy G. Mejia Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Kenneth L Salser Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 82
Debtor(s):
Edward A. Moore Jr. Represented By Paul Y Lee
Joint Debtor(s):
Carole Moore Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 109
Debtor(s):
Richard Hill Lindsay Represented By Emilia N McAfee
Joint Debtor(s):
Laura Lee Lindsay Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Michael J. Covington II Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Alberto Plascencia Represented By Paul Y Lee
Joint Debtor(s):
Martina Plascencia Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Robert P Contreras Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Marie G Contreras Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Benito Gonzalez Cardenas Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 73
Debtor(s):
Bradly Scott Aduddell Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Ryan Frank Escalante Represented By David Lozano
Joint Debtor(s):
Diana Karina Escalante Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
Martin Linares Represented By Craig K Streed Sundee M Teeple
Joint Debtor(s):
Elvia Linares Represented By
Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Sally Michelle Greene Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 77
Debtor(s):
Brent Duane Larson Represented By Carey C Pickford
Joint Debtor(s):
Sarah Marnet Larson Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Michael Douglas Guerino Represented By Joseph M Hoats
Joint Debtor(s):
Xochitl Rodriguez Guerino Represented By Joseph M Hoats
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Lavelle Lee Parker Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Brooke R Adams Represented By Lauren Rode
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 113
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
Debtor(s):
Pablo Flores Represented By
Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Ramona Hofman Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
David Becerra Represented By
Glenn Ward Calsada
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Dinari Williams Represented By Emilia N McAfee
Joint Debtor(s):
Chandra Denman-Williams Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
Anthony James Parker Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Cynthia Parker Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 70
Debtor(s):
Jeffrey Otto Schellin Represented By John F Brady
Joint Debtor(s):
Jennifer Lynn Schellin Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Patsy Jean Patterson Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Warren Thomas Derry Represented By Christopher C Barsness
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 140
Debtor(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
John W Bennett Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Mary Bennett Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Tony Apodaca Represented By Julie J Villalobos
Joint Debtor(s):
Lydia Apodaca Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 185
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
Noryvir Frondozo Bequilla Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Jennifer Lynn Anderson Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 70
Debtor(s):
Oraib Innabi Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Mary Jones Represented By
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 83
Debtor(s):
Edward J. Galvan Represented By Paul Y Lee
Joint Debtor(s):
Virginia Galvan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Juan Aguilera Represented By A Mina Tran
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Ashley Douglas Faulstich Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Patricia Daniels Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 129
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 90
Debtor(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Jeanie Sullivan Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Marc Meisenheimer Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Edward Joseph Camejo Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
John Adam Tribue IV Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
Joseph Liebgott IV Represented By John F Brady
Joint Debtor(s):
Robby Jean Harrison Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
Debtor(s):
Gene Ashley Heisser Jr. Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
Jose Luis Rojas Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Isaias Melo Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosa Melo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Ricardo Carranza Represented By Michael Smith Craig K Streed Sundee M Teeple
Joint Debtor(s):
Teresa D. Sotelo Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
John Wesley Wilson Jr. Represented By Julie J Villalobos
Joint Debtor(s):
Michelle Janet Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Ingeborg Margarete Preisendanz Represented By
Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Michele Helen Murillo Represented By Joshua R Driskell
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
Debtor(s):
Eduardo Lopez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
Debtor(s):
Marquis Vincent Campbell Represented By Eliza Ghanooni
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Octavio Rubio Mata Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Pamela Lynn King Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
DeVonna Troope Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 73
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 88
Debtor(s):
Rick Gaeta Carreon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Ernest Leyva Represented By
Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Gilberto Herrera Represented By Todd L Turoci
Joint Debtor(s):
Monica Herrera Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Maynor Obdulio Cruz Represented By Sunita N Sood
Joint Debtor(s):
Monica Ivonne Villeda Lopez Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Sandra M. Hankins Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Donald John Hanson Represented By Manfred Schroer
Joint Debtor(s):
Mary Merzella Hanson Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Matthew Bruce Represented By Christopher Hewitt
Joint Debtor(s):
Scott Bruce Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Johanna R. Lagandaon Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Winnie Marie Quanstrom Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
Debtor(s):
Diana Cescolini Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Sayel S. Abuhasou Represented By Ronald L Brownson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Irma Hernandez Represented By David T Egli
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Ricky Antonio Scott Represented By Marc E Grossman
Joint Debtor(s):
Shemida Shiloni Scott Represented By Marc E Grossman
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Maria Avila Represented By
Todd L Turoci
Trustee(s):
Karl T Anderson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Bartholemew James Ratner Represented By
H Christopher Coburn
Joint Debtor(s):
Pamela J Armijo-Ratner Represented By
H Christopher Coburn
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 90
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Ronald A Waters Represented By Paul Y Lee
Joint Debtor(s):
Trisha Waters Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 112
Debtor(s):
Spencer Kogut Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Suzette Andrea Kogut Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 152
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
Debtor(s):
Darryl Lamont Bradshaw Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Norma Brennan Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 95
Debtor(s):
Alma Angelica Rubio Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jerome Petras Oakman Represented By Dana Travis
Joint Debtor(s):
Angella Jean Oakman Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Julio Cesar Cacho Represented By
M Wayne Tucker
Joint Debtor(s):
Rosalie Ann Cacho Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 90
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Louis Gutierrez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Amy K. Arias Represented By
Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Manuel J. Sotelo Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Ester Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Ruby Duran Garcia Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
James W Schwartz Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Holly L Bryson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Victor Thomas Lawton Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Gary Wayne Turner Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Wanda Renay Turner Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Renard Louis Hamilton Represented By
D Justin Harelik
Joint Debtor(s):
Regina Elizabeth Hamilton Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 63
Debtor(s):
Bryan D. Chriss Represented By Michael Smith Cynthia L Gibson Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Brian Scott Bunnell Represented By Todd L Turoci
Joint Debtor(s):
Wendi Lynn Bunnell Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Jose Alberto Lara-Pena Represented By Luis G Torres
Joint Debtor(s):
Yanisleidy Sanchez-Quinonez Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
Debtor(s):
Michael Ray Sandoval Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Bruce A. Gooch Represented By
C Scott Rudibaugh
Joint Debtor(s):
Nicolette Gooch Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Veronica Salinas Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Gregory Dwight Vit Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Jose Camacho Payan Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Erika Vanessa Payan Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Joshua Lawrence Ferguson Represented By Stephen H Darrow
Joint Debtor(s):
Wendy Mae Ferguson Represented By Stephen H Darrow
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Jeremy Farnell Represented By Kristin R Lamar
Joint Debtor(s):
Anjanette Margrieta Bargas Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Veronica A Mendoza Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Paulo Cesar Machuca Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Robert Nelson Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Cindi Jo Metzger Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 20
Debtor(s):
Edmundo Sabado Jr. Represented By Jennifer Ann Aragon
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
William Rodriguez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Joseph V. Lessa Represented By Paul Y Lee
Joint Debtor(s):
Nichole Alyce Lessa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Lawrence Devon Shaw Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Michael Montoya Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Jose Luis Castillo Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Fernando Herrera III Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Luis A Jovel Represented By
Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Glennard Williams Represented By Nicholas M Wajda
Joint Debtor(s):
Bertrevia Daniellie Williams Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Katina Deneen Edwards Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Olivia Lopez Represented By
William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Victor Warrenlee Anastasi Jr. Represented By Dana Travis
Joint Debtor(s):
Diane Lynne Anastasi Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 93
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Ricardo Menendez Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Marie Cooper Represented By Amanda G Billyard Andy C Warshaw
Joint Debtor(s):
Albert Cooper Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Debra J. Falcone Represented By Michael Smith Craig K Streed Sundee M Teeple
Joint Debtor(s):
Charles W. Blackburn Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Isabel M Gutierrez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Angel Benavidez Represented By William P Mullins
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Gerald Bauer Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Joseph Frank Garcia Represented By Dana Travis
Joint Debtor(s):
Roberta Ann Garcia Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Biani Berlenda Mora Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Gwendolyn O. Doss Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Valecia Renee Knox Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Christina Hill Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
Debtor(s):
Maurice Frank Manceau Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Fernando Ramos Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Guadalupe Espinoza Represented By Edwing F Keller
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Peter Hiroshi Kiyasu Represented By Steven A Alpert
Joint Debtor(s):
Jennifer Ann Kiyasu Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Teresa A Salvail Represented By Julie J Villalobos
Joint Debtor(s):
Michael D Salvail Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
John Empey Represented By
Christopher Hewitt
Joint Debtor(s):
Madeleine Tappe Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Suzanne Berry Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Clarice Morris Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Israel Samuel Rolon Represented By William S Tilton
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Stephanie Lobato Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Joe Wallace Brown Represented By Christopher J Langley
Joint Debtor(s):
Yolanda Denise Moore Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Andre J Booker Represented By Paul Y Lee
Joint Debtor(s):
Carrie L Booker Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Nathaniel E Palmer Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Lubna Shiraz Ahmed Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Elmer Arnold Tompkins Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
John C. Macias Represented By Raymond Obiamalu
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
David Patrick Goode Represented By Dana Travis
Joint Debtor(s):
Valorie Ruth Goode Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Mario Timothy Velasquez Represented By Paul Y Lee
Joint Debtor(s):
Susan Lorraine Velasquez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Candice Maria Borrego Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Brian Eugene Anderson Represented By Todd L Turoci
Joint Debtor(s):
Gina Marie Anderson Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Kimberly A. Miller Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Cirenio Merida Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Juanita Francis Casey Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Ernesto Ayon Lopez Represented By
James Geoffrey Beirne
Joint Debtor(s):
Dolores Millan Sanchez Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Gail Katherine Stump Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Ruben Lopez Represented By
Terrence Fantauzzi
Joint Debtor(s):
Jessica Lopez Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Keith F Keating Represented By Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
John E Neilsen Sr Represented By Julie J Villalobos
Joint Debtor(s):
Kathy A Neilsen Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Trevor D. Washington Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 20
Debtor(s):
Jose Gabriel Sahagun Jr. Represented By Richard G Heston
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Susan Violet Guillot Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Shane Morgan Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Thanaa Victor Fransis Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Omar Enrique Lopez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Cathryn Woodworth Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Guillermina Perez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Jemill M Humphrey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Jesus Angel Acosta Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Teresa Acosta Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Allen Bravo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Silvia Alvarez Represented By
Filemon Kevin Samson III
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Vallan Rudolph Gentle Sr. Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Joseph Manuel Ruiz Represented By April E Roberts
Joint Debtor(s):
Shannon Elizabeth Ruiz Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Frank Heredia Represented By Laleh Ensafi
Joint Debtor(s):
Virginia Heredia Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Daniel Garcia Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Garcia Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Karsten Sanders Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Allan Omar Ramos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
William Richard Newborg Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Serina Rae Newborg Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Jorge Cristobal Green Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Shawn L. Johnson Represented By Mark S Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Tarra Marie Castillo Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Ruben Quintero Palafox Jr. Represented By Yoon O Ham
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
Debtor(s):
Samuel T Saavedra Represented By Michael R Totaro
Joint Debtor(s):
Suzanne M Saavedra Represented By Michael R Totaro
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Coe Lamoureux Represented By
W. Derek May
Joint Debtor(s):
Julie Lamoureux Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Ty Nicholas Garner Sr. Represented By Richard E Chang
Joint Debtor(s):
Diane Lynn Garner Represented By Richard E Chang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Richard Alan Alvarez Represented By Robert L Firth
Joint Debtor(s):
Diana Marie Alvarez Represented By Robert L Firth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Jesse Norman Dofelmire Represented By Carey C Pickford
Joint Debtor(s):
Roucelle Frias Dofelmire Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Oscar Avila Represented By
Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Alejandro Lawrence Bernal Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Mike A. Granados Jr. Represented By Gregory M Shanfeld
Joint Debtor(s):
Carolynne Jeannette Granados Represented By Gregory M Shanfeld Gabriella Gonzales
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Frank Ramirez Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Linda Revoner Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Kalenga Patrick Munongo Represented By Paul Y Lee
Joint Debtor(s):
Janelle Nicole Munongo Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Gary Ramirez Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Christina Faith Ramirez Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Armando Montoya Jr. Represented By Aruna P Rodrigo
Joint Debtor(s):
Isabel Anne Montoya Represented By Aruna P Rodrigo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Artush Stepanian Represented By
James D. Hornbuckle
Joint Debtor(s):
Wendy L. Wilkie Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 20
Debtor(s):
Lisa Tompkins Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
William R. Martin Represented By
James D. Hornbuckle
Joint Debtor(s):
Judy L. Martin Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Rickey Hernando Waddington Represented By Jonathan D Doan
Joint Debtor(s):
Elrena Victoria Waddington Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Vanessa Moore-Moreland Represented By Kirk A Laron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Nicholas Charles Goodner Represented By Dana Travis
Joint Debtor(s):
Jennifer Louise Goodner Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 87
Debtor(s):
Luis A Andrade Represented By Terrence Fantauzzi
Joint Debtor(s):
Sarah Marie Andrade Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Richard Ramirez Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Earma Denise Young Washington Represented By
Brad Weil
Joint Debtor(s):
Marvin Ray Washington Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 116
Debtor(s):
Jose Munguia Valencia Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Violeta Perola Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
Luis Fernando Montoya Jr. Represented By Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
David Kevin Davidson Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Lisa Marie Davidson Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Deborah Thomas Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Annette Culpepper Represented By Nathan Fransen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
Debtor(s):
Ray Valdepena III Represented By Ryan A. Stubbe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Harvey Everett Mosely Represented By Paul Y Lee
Joint Debtor(s):
Jean Ann Mosely Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Kevin William Dixon Represented By Paul Y Lee
Joint Debtor(s):
Leticia Dixon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Terry Neil Gaia Represented By Edward G Topolski
Joint Debtor(s):
Tamara Marie Devalle-Gaia Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Kendra Susan Lewkow Represented By Morton J Grabel
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Ryan Patrick McHugh Represented By Paul Y Lee
Joint Debtor(s):
Jennifer Lynne McHugh Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Jose Guadalupe Sandoval Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Jorge Luis Luviano Represented By
James Geoffrey Beirne
Joint Debtor(s):
Giovanna Toledo De Luviano Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Justin Lee Martin Represented By Todd L Turoci
Joint Debtor(s):
Ashley Ann Martin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Gerald Curtis Collins Represented By
M Wayne Tucker
Joint Debtor(s):
Valerie Cecelia Collins Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Derek Brian Winkenweder Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Arturo Olvera Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Rosa Del Carmen Cruz Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Ignacio Figueroa Represented By
Ghada Helena Philips
Joint Debtor(s):
Nadia Elizabeth Figueroa Represented By
Ghada Helena Philips
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Tony Lopez Sr Represented By Edgar P Lombera
Joint Debtor(s):
Nelida Aguilar Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
FLORENTINO BRAVO TORRES Represented By
Michael Y Lo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Hugo Sanchez Cruz Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Maria Leticia Estrada Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Francisco R Tamayo Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Linnea Rennee-Chrismon Allen Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Brenda Barlow Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 79
Debtor(s):
Julio C. Davila Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Cary Allen Griggs Represented By Ronald W Ask
Joint Debtor(s):
Heather Lynn Griggs Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Roberto Garcia Garcia Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Maria Martha Garcia Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Manuel Mayorga Represented By Curtis R Aijala
Joint Debtor(s):
Teodora Mayorga Represented By Curtis R Aijala
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Carolyn Joyce Brooks Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Lelang Fulwiler Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Daniel Morales Represented By Anthony Wilaras
Joint Debtor(s):
Sonia Morales Represented By Anthony Wilaras
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Hector Rene Flores Jr. Represented By Kevin Tang
Joint Debtor(s):
Mayra Cecilia Canchola Vasquez Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Josephine Theobald Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Edgar Raymond Domingue Sr. Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Michelle Crain Represented By Roland D Tweed
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
Malama Togia Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Rafeek Nehman Hamada Represented By
Eric Bensamochan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Armando Hermosillo Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Jaime Villalobos Represented By
Rabin J Pournazarian
Joint Debtor(s):
Jennifer Villalobos Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
Debtor(s):
Maria del Socorro Valdez Quintero Represented By
Stephen H Darrow
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Juan Hernandez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Brian Anthony Paciorkowski Represented By Kristin R Lamar
Joint Debtor(s):
Donna Ann Paciorkowski Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
Debtor(s):
Ernesto Sanchez Represented By Jerry Rulsky
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 79
Debtor(s):
Cynthia Ramos Represented By Hayk Grigoryan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Victor Manuel Buelna Represented By David Lozano
Joint Debtor(s):
Adriana Alvizo Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
Debtor(s):
Larry Gene Hannah Represented By Todd L Turoci
Joint Debtor(s):
Susan Harris Hannah Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Wasantha K. Leonidas Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Angel Rodriguez Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Laquance Denise Mejia Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Lawrence Edmond III Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Frank Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Susan Garcia Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Tiffany Venice Turner Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
Joint Debtor(s):
Dora Maria Joya Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Laurie Frances Bigelow Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Gilbert Richard Enriquez Represented By
Raj T Wadhwani
Joint Debtor(s):
Lisa Lynn Enriquez Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Michael Adam Moore Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Gregory Lincoln Represented By Dana Travis
Joint Debtor(s):
Norma Araceli Lincoln Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Natona Smith Represented By Natalie A Alvarado
Joint Debtor(s):
Tameiko Smith Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 20
Debtor(s):
Alma Barbara Ewing Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Christina Irene Dillon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Carolyn Agtang Glenn Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Charles Lee Dismukes Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Anna C. Hopson Represented By Julie J Villalobos
Joint Debtor(s):
George E. Hopson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Deborah L Tafolla Represented By
Jessica De Anda Leon
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Raymond Ballejos Represented By Natalie A Alvarado
Joint Debtor(s):
Veronica Ballejos Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Oracio Rosales Hernandez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Michelle Singleton Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Felipe Gerardo Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Michael S McGowan Represented By Terrence Fantauzzi
Joint Debtor(s):
Brandy L McGowan Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Frank Mike Gonzales Represented By Paul Y Lee
Joint Debtor(s):
Stacey Lynn Gonzales Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Jennifer Heredia Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Marian Amelia Pagano Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Coralia Beltran Rivas Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Patricia Cuen Represented By
Kelly F Ryan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Shelley R. Long Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
Debtor(s):
Cheryl Linda Fernandez Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Wanny Chansy Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
David H Yopp Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Manuel James Ritchie Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Belen L. Rubio Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Ertun Reshat Represented By
April E Roberts
Joint Debtor(s):
Hale Reshat Represented By
April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Guillermo Zamudio Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Vaughn Stevens Represented By Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Nereeka Tamar Haynes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Amanda Martinez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Mohammed A Nazir Represented By Paul Y Lee
Joint Debtor(s):
Boshara Nazir Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Urbano Zamora Represented By Edgar P Lombera
Joint Debtor(s):
Esther Zamora Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
Debtor(s):
Isaias Solano Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Dana Lashonn Hays Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
Debtor(s):
Leonel Villa Represented By
Luis G Torres
Joint Debtor(s):
Lucila Pineda Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Jose Guadalupe Lopez Represented By David Lozano
Joint Debtor(s):
Margarita Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Scott Lawrence Represented By Kevin Tang
Joint Debtor(s):
Anita D Lawrence Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
David Allen Rose Jr. Represented By Dana Travis
Joint Debtor(s):
Karen Sue Rose Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Wayman L Guider Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Luis Fuentes Moreno Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Stephen Francis Wallin Represented By Dana Travis
Joint Debtor(s):
Kathleen Lillian Wallin Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Brenda Jean Bartlett Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Charles Mickey Alligood Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Alejandro J. Casillas Represented By Tina H Trinh
Joint Debtor(s):
Patricia Casillas Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Felipe Gonzalez Plasencia Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 20
Debtor(s):
Kim Onpaeng Represented By Steven J Diamond
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Michael Christopher Oropallo Represented By
Rabin J Pournazarian
Joint Debtor(s):
Lauren Elaine Oropallo Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
William Thomas Pedrino Represented By Todd L Turoci
Joint Debtor(s):
Terri Lyn Pedrino Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Roberto Rolon Rodriguez Represented By
James Geoffrey Beirne
Joint Debtor(s):
Maria Rolon Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Anna Rosa Lopez Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Eugene Peter Roman Jr. Represented By Todd L Turoci
Joint Debtor(s):
Sylvia Roman Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Gilberto Linares Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Jesus Manuel Remigio Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 71
Debtor(s):
Francisco Javier Martinez Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 85
Debtor(s):
Evan Todd Flynn Represented By Emilia N McAfee
Joint Debtor(s):
Elizabeth Flynn Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Candyce Flemister Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Jose Reyes Agredano Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Moises Martinez Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Manuel Garcia Marquez Represented By Christopher Hewitt
Joint Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Danny Howard Weeks Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Edgardo Aranda Represented By Paul Y Lee
Joint Debtor(s):
Kelley Aranda Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Stephen Daniel Payan Represented By Paul J Kurtzhall
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Jaqueline Lee Stephens Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Ruben Munoz Tovar Represented By Sunita N Sood
Joint Debtor(s):
Sandra Isabel Garcia Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Christopher G. Templeton Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Diana J Everett Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Danilo DeLaCruz Jr. Represented By Paul Y Lee
Joint Debtor(s):
Maria Russiel DeLaCruz Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Rick Williamson Represented By Todd L Turoci
Joint Debtor(s):
Helen Carol Williamson Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
Jeffrey R Powell Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
John Louis Baumann Represented By
M Wayne Tucker
Joint Debtor(s):
Tracey Leigh Baumann Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Dony M Portillo Represented By Paul Y Lee
Joint Debtor(s):
Raquel A Portillo Represented By Paul Y Lee Andrea Liddick
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
Debtor(s):
Karen Ann Staff Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Rushelyn Napalan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Randy Saulsberry Represented By David L Nelson
Joint Debtor(s):
Kimberly E May Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
Debtor(s):
Kiia Chree Wilson Represented By Gordon L Dayton
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Michael A Losoya Represented By Julie J Villalobos
Joint Debtor(s):
Patricia O Losoya Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
Debtor(s):
Marsha Elizabeth Hall Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
Debtor(s):
Gwendolyn Priscilla Saunders Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Richard Espinoza Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Michael James Gresham Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Damion Marshall Represented By Andrew Nguyen
Joint Debtor(s):
Marshariki Frazier Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Wayne Anthony King Represented By Dana Travis
Joint Debtor(s):
Traci Ann Zweck Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Raymond Burrola Represented By Elena Steers
Joint Debtor(s):
Estela Burrola Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
Debtor(s):
David Fox Represented By
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
Debtor(s):
Kyle Stephens Represented By Mona V Patel
Joint Debtor(s):
Diandra Stephens Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Kyle Stephens Represented By Mona V Patel
Joint Debtor(s):
Diandra Stephens Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Carmen Lopez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 21
Debtor(s):
Maribel M Vasquez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Matthew Glenn Martin Represented By Todd L Turoci
Joint Debtor(s):
Melody Dawn Martin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
James David Wilson IV Represented By Dina Farhat
Joint Debtor(s):
Kerri Ann Wilson Represented By Dina Farhat
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 21
Debtor(s):
Keely J Barrett Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
Debtor(s):
Brian Howell Represented By
Julie J Villalobos
Joint Debtor(s):
Faythe Howell Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MTGLQ INVESTORS LP
EH
Docket 200
Service: Proper Opposition: Yes
Debtor’s confirmed plan provided for Debtor to surrender his interest in the real property at issue, and the plan does not treat Movant’s claim. Therefore, as to Debtor, Movant has established cause for relief from the automatic stay.
As to Movant’s request for relief from the co-debtor stay, the Court notes that the co- debtor at issue here, Debtor’s former spouse, appears to have been served with the motion and failed to file opposition, which the Court can deem consent to the relief requested pursuant to Local Rule 9013-(1)(h). More importantly, 11 U.S.C. §1301(c)
provides that the Court must grant relief from the co-debtor stay if "the plan filed by the debtor proposes not to pay such claim." Therefore, relief from the co-debtor stay is appropriate.
APPEARANCES REQUIRED.
Debtor(s):
John Alexander Jay Represented By
10:00 AM
Movant(s):
Jenny L Doling Summer M Shaw
MTGLQ Investors, LP Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
From: 6/20/18 EH
Docket 53
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Donald Ray Eskridge Represented By Paul Y Lee
Movant(s):
PennyMac Loan Services, LLC Represented By John D Schlotter
Karrollanne K Cayce Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 4/24/18, 6/5/18 EH
Docket 41
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
On March 29, 2018, Debtor filed a Motion for Authority to Sell the Property. Debtor has indicated that he intends to pay off the Movant and remainder of the chapter 13 plan through escrow. The Trustee has recommended approval of the sale. The Court is inclined to CONTINUE the matter for 30 days for Debtor to finalize sale.
APPEARANCES REQUIRED.
Debtor(s):
Delkys Hyde Represented By
David L Nelson
Movant(s):
Bank of America, N.A. Represented By Bonni S Mantovani
S Renee Sawyer Blume Alexander G Meissner
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 51
- NONE LISTED -
Debtor(s):
Dorothy Mae Simmons Represented By
M Wayne Tucker
Movant(s):
LakeView Loan Servicing, LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 2/6/18, 3/6/18, 4/10/18, 5/8/18, 6/5/18, 7/10/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot. DENY relief from § 1301(a) stay because it is unclear if effective service was made upon "borrower" Anthony Elie. Furthermore, because Anthony Elie is not a party to the note he is not a co-debtor within the meaning of the statute.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By
10:00 AM
Trustee(s):
Armin M Kolenovic Jamie D Hanawalt
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 57
Service: Proper Opposition: No
The Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Katina Deneen Edwards Represented By Paul Y Lee
Movant(s):
Lakeview Loan Servicing LLC Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SUNG ELLISON AND KELLY ELLISON
EH
Docket 42
On June 4, 2017, Timothy Wayne Lambert and Lisa Renee Lambert ("Debtors" or "Defendants") filed a Chapter 13 voluntary petition. Defendants had a previous bankruptcy case filed on October 1, 2004, and received a discharge on January 7, 2005.
On June 28, 2018, Kelly and Sung Ellison ("Creditors" or "Plaintiffs") filed a motion for relief from the automatic stay, requesting, in part, annulment of the automatic stay. The Plaintiffs own a mobile home park and had a lease agreement with the Defendants for one unit. The Plaintiffs assert that the unit currently controlled by and leased to the Defendants is falling into disrepair and its condition encourages the homeless to occupy it. Plaintiffs further allege that Defendants are subleasing the unit to tenants without paying rent to the Plaintiffs. Plaintiffs seek to annul the stay to evict all occupants and remove the mobile home unit from the park.
11 U.S.C. § 362(d) states:
10:00 AM
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided, under subsection (a) of this section such as by terminating, annulling, modifying, or condition such stay –
(emphasis added); see also In re Schwartz, 954 F.2d 569, 573 (9th Cir. 1992) ("If a creditor obtains retroactive relief under section 362(d), there is no violation of the automatic stay, and whether violations of the stay are void or voidable is not at issue.").
The BAP, in In re Fjeldsted, noted the absence of a clear standard for annulment of the automatic stay. 293 B.R. 12, 21 (B.A.P. 9th Cir. 2003) ("There is less appellate clarity, however, in enunciating a test for retroactive stay relief. Inconsistent standards have thus developed, which run the gamut from such relief being justified only in ‘extreme circumstances’ to giving the court ‘wide latitude’ to ‘balance the equities’ on a case-by-case basis."). The BAP’s most recent announcement of the standard for annulment of the automatic stay stated the following:
Determining whether cause exists to annul the stay is a case-by-case inquiry based on a balance of the equities. In conducting this inquiry the bankruptcy court, among other factors, should consider whether the creditor knew of the bankruptcy when violating the stay and whether the debtor’s conduct was unreasonable, inequitable or prejudicial to the creditor.
In Fjeldsted, we approved additional factors for consideration in assessing the equities. The twelve nonexclusive factors are: (1) number of filings; (2) whether, in a repeat filing case, the circumstances indicate an intention to delay and hinder creditors; (3) a weighing of the extent of prejudice to
10:00 AM
creditors or third parties if the stay relief is not made retroactive, including whether harm exists to a bona fide purchaser; (4) the debtor’s overall good faith (totality of circumstances test); (5) whether creditors knew of stay but nonetheless took action, thus compounding the problem; (6) whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules; (7) the relative ease of restoring parties to the status quo ante; (8) the costs of annulment to debtors and creditors; (9) how quickly creditors moved for annulment, or how quickly debtor moved to set aside the sale or violative conduct; (10) whether, after learning of the bankruptcy, creditors proceeded to take steps in continued violation of the stay, or whether they moved expeditiously to gain relief; (11) whether annulment of the stay will
cause irreparable injury to the debtor; and (12) whether stay relief will promote judicial economy or other efficiencies. The Panel in Fjeldsted cautioned that the twelve factors are merely a framework for analysis and not a scorecard, and that in any given case, one factor may so outweigh the others as to be dispositive.
In re Estavan Capital LLC, 2015 WL 7758494 at *5 (B.A.P. 9th Cir. 2015) (citations and quotations omitted).
While Fjeldsted cautioned that the enumerated factors are not a scorecard, many of the factors suggest that the stay should be annulled. Plaintiffs allege that they were not made aware of the bankruptcy proceedings until they were served with answers to the unlawful detainer complaints shortly before trial. While the Defendants only have one prior filing, there is great prejudice to creditors if the stay is not annulled. The units are in continuing disrepair, and the Plaintiffs allege that the units are being rented out to unauthorized occupants while they do not receive pay. Plaintiffs did not disregard the stay since they did not know it existed, and they moved expeditiously to gain relief. If the stay is annulled, Plaintiffs can most efficiently and expediently restore the units to the status quo ante, and prevent further costs to the parties.
The Curtis factors determine whether relief from stay to permit pending litigation to continue in another forum is appropriate. In re Curtis, 40 B.R. 795 (Bankr. D. Utah
10:00 AM
1984) (cited with approval in In re Plumberex Specialty Prod., Inc., 311 B.R. 551, 559 (Bankr. C.D. Cal. 2004) and Kronemyer v. American Contractors Indem. Co. (In re Kronemyer), 405 B.R. 915, 921 (9th Cir. BAP 2009)). The twelve Curtis 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."
Here, this is a Chapter 7 proceeding, the estate’s interest in the premises which are the subject of the state court proceeding is merely possessory in nature, the conclusion of the state court proceeding would completely resolve the issues while not interfering with the liquidation of the bankruptcy case or prejudicing the interests of creditors, and the state court has specialized knowledge and expedited procedures for addressing the issues at hand. Furthermore, the bankruptcy proceeding is only still active due to the apparent lack of quick cooperation of Debtors (as evidenced by fourteen continuations of the meeting of creditors) and a pending objection to discharge adversary proceeding. As a result, it is clear that the equities weigh in favor of granting the motion; several of the Curtis factors (specifically factors 1, 2, 4, 7, 11, and 12) weigh in favor of granting the motion, while none of the Curtis factors weigh in favor of denial.
10:00 AM
Furthermore, Debtors have failed to oppose the instant motion, which the Court deems consent to the relief requested pursuant to Local Rule 9013-(1)(h).
The Court’s tentative ruling is to GRANT the relief from the stay under § 362(d)(1), GRANT waiver of 4001(a)(3) stay. GRANT annulment of the automatic stay.
GRANT request under ¶ 6.
APPEARANCES REQUIRED.
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
Movant(s):
Kelly Ellison Represented By
W. Derek May
Sung Ellison Represented By
W. Derek May
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: TROJAN CAPITAL INVESTMENTS LLC
EH
Docket 57
Service is Proper Opposition: None
The Court is inclined to GRANT relief pursuant to § 362(d)(1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. DENY request for relief from § 1301(a) stay because it does not appear that the instant motion was served on any co-debtor as that termed is used in the applicable statute. GRANT request under ¶ 2. DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
John E Neilsen Sr Represented By Julie J Villalobos
Joint Debtor(s):
Kathy A Neilsen Represented By Julie J Villalobos
10:00 AM
Movant(s):
Trojan Capital Investment LLC Represented By Henry D Paloci Richard J Reynolds
Rafael R Garcia-Salgado
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 6/20/18 EH
Docket 43
- NONE LISTED -
Debtor(s):
Isabel Duran Garcia Represented By Robert J Spitz
Movant(s):
Bank of America, N.A. Represented By Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 7/10/18 EH
Docket 34
07/10/2018
Service: Proper Opposition: Yes
The Debtor asserts that there is a sufficient equity cushion to protect Movant and requests an APO and opportunity to cure the missed May and June mortgage payments. The Debtor, however, has inadequately explained the reason for the defaults.
APPEARANCES REQUIRED.
Debtor(s):
Wayman L Guider Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL PARTNERS CREDIT UNION
EH
Docket 31
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: M&T BANK AS ATTORNEY IN FACT FOR LAKEVIEW LOAN SERVICING LLC
EH
Docket 10
- NONE LISTED -
Debtor(s):
Nadia Joy Keehmer Represented By Marjorie S Archer
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Nancy L Lee
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: RANDOLPH BROOKS FEDERAL CREDIT UNION
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Sergio Garcia Represented By Brian J Soo-Hoo
Joint Debtor(s):
Maria Guadalupe Garcia Represented By Brian J Soo-Hoo
Movant(s):
Randolph Brooks Federal Credit Represented By
Paul V Reza
10:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1) and (d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Boyd Eugene Givens Pro Se
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1) and (2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Anthony Benitez Represented By Nicholas M Wajda
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ernest M. Rivera Jr. Represented By Paul Y Lee
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON CASE DISMISSED: 6/29/18
EH
Docket 9
- NONE LISTED -
Debtor(s):
Veronica Diazgranados Pro Se
Movant(s):
The Bank of New York Mellon FKA Represented By
Tyneia Merritt
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: CALIFORNIA COAST CREDIT UNION
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2. DENY relief from § 1301(a) stay because no co-debtor was served with the instant motion. DENY alternative request under ¶ 11 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Mourence Eugene Burris Represented By Carey C Pickford
Movant(s):
California Coast Credit Union Represented By Lisa S Yun
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: DONALD W. LITTLE AND JUNE A LITTLE
EH
Docket 5
Service: Proper Opposition: None
The Court is inclined to GRANT relief from the stay under § 362(d)(1) and § 362(d) (2). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jimmy Lee Brown Pro Se
Movant(s):
Donald W Little and June A Little, Represented By
Julian K Bach
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: 20 CAP FUND I, LLC
EH
Docket 11
- NONE LISTED -
Debtor(s):
Hugo Perez Pro Se
Movant(s):
20 Cap Fund I, LLC Represented By Daniel I Singer
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
From: 7/19/18 EH
Docket 12
- NONE LISTED -
Debtor(s):
Amber Michelle Bradley Represented By
Neelamjeet K Kahlon-Pfister Cory T Salisbury
Movant(s):
Amber Michelle Bradley Represented By
Neelamjeet K Kahlon-Pfister Neelamjeet K Kahlon-Pfister Cory T Salisbury
Cory T Salisbury
Trustee(s):
Robert Whitmore (TR) Pro Se
1:00 PM
From: 1/9/18, 4/10/18, 7/10/18 Also # 22 & 23
EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
1:00 PM
Also # 21 & 23 EH
Docket 328
On December 1, 2017, Auto Strap Transport, LLC ("Debtor") filed a Chapter 11 voluntary petition. On March 6, 2018, a chief restructuring officer, Stephen Douglass (the "CRO"), was appointed on an interim basis, and, on April 11, 2018, appointed on a final basis. Now, relying on the estimates of the CRO, Debtor believes it will be at least six months before Debtor can become profitable, and, therefore, "Debtor has determined the best option for its creditors is to sell its assets." [Dkt. No. 328, pg. 8, lines 24-26]. On June 26, 2018, Debtor filed a motion to sell substantially all assets of Debtor free and clear of liens (the "Motion").
The basic terms of the Motion are the following: Debtor proposes to sell to Nations Fund I, LLC ("Nations"), Debtor’s largest secured creditor, all of Debtor’s assets which are not subject to purchase money security interests or leases with creditors other than Nations (the "Assets").1 The Motion contemplates Nations purchasing the Assets for the amount of $3,200,000, of which $2,950,000 is a credit bid, and
$250,000 in a cash payment to be predominantly used for payment of administrative claims. Debtor estimates that the Assets have a fair market value of $3,160,000.
1:00 PM
11 U.S.C. § 363(b)(1) provides that Debtor may use, sell, or lease property of the estate outside of the ordinary course of business after notice and a hearing. The Court notes the following non-exclusive issues with the current version of the Motion:
Notice
FED. R. BANKR. P. Rule 6004(a) provides: "Notice of a proposed use, sale, or lease of property, than cash collateral, not in the ordinary course of business shall be given pursuant to Rule 2002(a)(2), (c)(1), (i), and (k) and, if applicable, in accordance with § 363(b)(2) of the Code." FED. R. BANKR. P. Rule 2002(a)(2) requires the Motion to be served on all creditors, which does not appear to have been done here. Specifically, the Court notes that the petition in the instant case identifies 111 parties to receive notice, however, the Motion appears to have been served on substantially less than half that many entities.
Fair Market Value and Marketing
Local Rule 6004-(1)(c)(2)(A) provides that the Motion "must be supported by a declaration of the movant establishing the value of the property and that the terms and conditions of the proposed sale, including the price and all contingencies, are in the best interest of the estate." While the Motion does include a declaration of Debtor’s principal establishing a fair market value of $3.16 million, the Motion does not include any breakdown of that valuation or the comparables upon which the valuation was based. Additionally, the old adage that "value is what someone is willing to pay" is pertinent here. Section III.G of the Motion suggests that the marketing effort was possibly inadequate, and tardy at best. Specifically, the future tense verbiag of the section indicates that Debtor did not engage in any marketing prior to filing the motion. Debtor also stated it would file a supplement seven days before the sale hearing, however, such supplement was only filed the morning before the hearing,
1:00 PM
depriving the Court of ample time to review the submitted evidence. Additionally, Debtor did not submit the "due diligence package" it allegedly used in marketing. Finally, the late supplement filed indicates in paragraph 14 that a potential buyer has not yet rendered a decision on whether to overbid. Ultimately, in light of the evidence presented to the Court, the Court is unable to conclude that the rushed marketing effort is inadequate in light of the unusual and complex nature of the sale under consideration.
Miscellaneous Issues
-The Motion states that "Debtor is reviewing the tax consequences to the bankruptcy estate as a result of the proposed sale. Debtor will update the Court at the hearing as to the tax consequences, if any." [Dkt. No. 328, pg. 12, lines 4-5]. The Court intends to require that the estimation of tax consequences be included in the amended motion.
-The Motion fails to provide a breakdown of administrative, priority, and unsecured claims and the possible distribution to each class. At this stage of the case, and given the case’s trajectory, it seems Debtor should possess a reasonably accurate estimate of the administrative claims in this case which would allow priority and unsecured creditors to determine the amount of any potential distribution, if any. Currently, the Motion’s treatment of the distribution of the sales proceeds is vague; the Motion also confusingly refers to Nation’s retaining a security interest in the cash component of the purchase amount, for reasons that are very unclear.
APPEARANCES REQUIRED.
Debtor(s):
Auto Strap Transport, LLC Represented By
1:00 PM
Movant(s):
Todd L Turoci
Auto Strap Transport, LLC Represented By Todd L Turoci
1:00 PM
Also # 21 & 22 EH
Docket 354
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
1:00 PM
MOVANT: WELLS FARGO BANK, N.A.
From: Advanced from 2:00 calendar EH
Docket 71
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶ 2,3, and 12.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
2:00 PM
Adv#: 6:18-01116 Forte v. B & B Family, Incorporated
EH
Docket 1
- NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
Defendant(s):
B & B Family, Incorporated Represented By Todd L Turoci
Plaintiff(s):
Patricia Forte Represented By
D Edward Hays Laila Masud
2:00 PM
EH
Docket 113
- NONE LISTED -
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
Movant(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano David Lozano David Lozano David Lozano David Lozano
2:00 PM
EH
Docket 173
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
United States Trustee (RS) Represented By Everett L Green
2:00 PM
From: 1/9/18, 4/10/18, 7/10/18 EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also # EH
Docket 354
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also # EH
Docket 328
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 71
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 6/26/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
R. Civ. P. 12(B)(6) and Fed. R. Bank. P. EH
Docket 11
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Movant(s):
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
11:00 AM
EH
Docket 87
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 12, 2018, Trustee filed Objection to Claim #10-1 (the "Objection") of Midland Funding LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby
11:00 AM
giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor took place on November 17, 2009, and that the Claimant charged off the account on August 11, 2009. Assuming the prima facie validity of the Claim, the last transaction date indicates that the statute of limitations had not lapsed
11:00 AM
as of the Petition Date. To controvert the Claim’s allegation regarding the last transaction date, the Trustee "must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040. To meet this burden, the Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, the evidence controverts an essential allegation of the Claim regarding the last transaction date.
Thus, the burden to show the validity of Claim No. 10 must shift to Claimant.
Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 10 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #1 - #8 EH
Docket 88
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 12, 2018, Trustee filed Objection to Claim #1-1 (the "Objection") of American InfoSource LP as agent for Midland Funding LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the
11:00 AM
Debtor and original creditor took place on November 17, 2009. Assuming the prima facie validity of the Claim, the last transaction date indicates that the statute of limitations had not lapsed as of the Petition Date. To controvert the Claim’s allegation regarding the last transaction date, the Trustee "must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040. To meet this burden, the Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, the evidence controverts an essential allegation of the Claim regarding the last transaction date.
Thus, the burden to show the validity of Claim No. 1 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 1 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
11:00 AM
Maria Lopez Castro Represented By Leonard J Cravens
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #1 - #8 EH
Docket 89
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 12, 2018, Trustee filed Objection to Claim #7-2 (the "Objection") of Jefferson Capital Systems, LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
11:00 AM
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor took place on November 17, 2009. Assuming the prima facie validity of the Claim, the last transaction date indicates that the statute of
11:00 AM
limitations had not lapsed as of the Petition Date. To controvert the Claim’s allegation regarding the last transaction date, the Trustee "must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040. To meet this burden, the Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, the evidence controverts an essential allegation of the Claim regarding the last transaction date. As a separate issue, the Trustee asserts that the Claim fails to establish an unbroken chain of title. The Claim indicates that Wells Fargo was the original creditor and then that the claim was transferred from National Credit Adjusters, LLC ("National") to Claimant. However, there is no documentation establishing the transfer of the rights in the claim from Wells Fargo to National. The objection is well-taken. See In re Veal, 450 B.R. 897, 920 (9th Cir.
BAP 2011).
Thus, the burden to show the validity of Claim No. 7-2 must shift to Claimant.
Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 7-2 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
11:00 AM
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #1 - #8 EH
Docket 96
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 14, 2018, Trustee filed Objection to Claim #3-1 (the "Objection") of Portfolio Recovery Associates, LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
11:00 AM
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor took place on November 17, 2009. Assuming the prima facie validity of the Claim, the last transaction date indicates that the statute of
11:00 AM
limitations had not lapsed as of the Petition Date. To controvert the Claim’s allegation regarding the last transaction date, the Trustee "must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040. To meet this burden, the Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, the evidence controverts an essential allegation of the Claim regarding the last transaction date.
Thus, the burden to show the validity of Claim No. 3 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 3 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #1 - #8 EH_
Docket 98
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 14, 2018, Trustee filed Objection to Claim #6-2 (the "Objection") of Collecto US Management Inc; Jefferson Capital Systems, LLC Assignee ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the
11:00 AM
Debtor and original creditor is unavailable. The Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, and given that the Claim fails to indicate the last transaction date, the evidence controverts an essential allegation of the Claim regarding the last transaction date.
Thus, the burden to show the validity of Claim No. 6-2 must shift to Claimant.
Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 6-2 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #1 - #8 EH
Docket 101
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 14, 2018, Trustee filed Objection to Claim #8-2 (the "Objection") of Jefferson Capital Systems, LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
11:00 AM
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor is "N/A." The Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been
11:00 AM
made for four years. The evidence is scant. However, absent opposition from the Claimant, and given that the Claim fails to indicate the last transaction date, the evidence controverts an essential allegation of the Claim regarding the last transaction date. As a separate issue, the Trustee asserts that the Claim fails to establish an unbroken chain of title. The Claim indicates that Wells Fargo was the original creditor and then that the claim was transferred from RJM Acquisitions, LLC ("RJM") to Claimant. However, there is no documentation establishing the transfer of the rights in the claim from Wells Fargo to RJM. The objection is well-taken. See In re Veal, 450 B.R. 897, 920 (9th Cir. BAP 2011).
Thus, the burden to show the validity of Claim No. 8-2 must shift to Claimant.
Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 8-2 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By
11:00 AM
Trustee(s):
Leonard J Cravens
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 102
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 14, 2018, Trustee filed Objection to Claim #9-1 (the "Objection") of LVNV Funding, LLC its successors and assigns as assignee of Arrow Financial Services, LLC ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
11:00 AM
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor was June 29, 2009, which exceeds the four year statute of limitations. As a separate issue, the Trustee asserts that the Claim fails to establish an
11:00 AM
unbroken chain of title. The Claim indicates that GE was the original creditor. At some point, the Claim was transferred to Claimant. However, there is no documentation establishing the transfer of the rights in the claim from GE to Claimant. The objection is well-taken. See In re Veal, 450 B.R. 897, 920 (9th Cir. BAP 2011).
Thus, the burden to show the validity of Claim No. 9-1 must shift to Claimant.
Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 9-1 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
11:00 AM
Also #1 - #7 EH
Docket 97
On October 28, 2013 ("Petition Date"), Porfirio and Maria Castro (collectively, "Debtors") filed for chapter 13 relief. On August 16, 2017, the case was converted to a case under chapter 7. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). On June 14, 2018, Trustee filed Objection to Claim #2-1 (the "Objection") of Department Stores National Bank/Macys ("Claimant").
Service was proper and no opposition has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
11:00 AM
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Trustee asserts that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
Here, the Claimant’s documentation indicates that the last transaction between the Debtor and original creditor took place on November 17, 2009. Assuming the prima facie validity of the Claim, the last transaction date indicates that the statute of
11:00 AM
limitations had not lapsed as of the Petition Date. To controvert the Claim’s allegation regarding the last transaction date, the Trustee "must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040. To meet this burden, the Trustee has provided a declaration of the Debtors by which they assert under penalty of perjury that no payments have been made for four years. The evidence is scant. However, absent opposition from the Claimant, the evidence controverts an essential allegation of the Claim regarding the last transaction date.
Thus, the burden to show the validity of Claim No. 2 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Court is inclined to disallow Claim No. 2 as time barred. APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Joint Debtor(s):
Maria Lopez Castro Represented By Leonard J Cravens
Movant(s):
Porfirio Macias Castro Represented By Leonard J Cravens
Maria Lopez Castro Represented By Leonard J Cravens
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
From: 8/30/17, 9/20/17, 11/1/17, 12/13/17, 2/7/18, 2/28/18, 3/28/18, 5/9/18, 6/6/18, 6/27/18
EH
Docket 148
- NONE LISTED -
Debtor(s):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Movant(s):
Hilder & Associates Represented By
Lei Lei Wang Ekvall
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
11:00 AM
EH
Docket 102
- NONE LISTED -
Debtor(s):
James Lloyd Walker Pro Se
Movant(s):
Robert Whitmore (TR) Represented By Cathy Ta Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By Cathy Ta Caroline Djang
11:00 AM
Docket 34
07/25/2018
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 2,807.27 Trustee Expenses: $ 102.72
The application for compensation is approved and the trustee may submit on the tentative.
APPERANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Benjamin Tameifuna Represented By Joshua L Sternberg
Joint Debtor(s):
Melenaite L Tameifuna Represented By Joshua L Sternberg
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 76
07/25/2018
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee and his Counsel have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: | $ 20,000 |
Trustee Expenses: | $ 93.31 |
Counsel Fees: | $16,840 |
Counsel Expenses: | $957.94 |
The applications for compensation are approved and the trustee and professionals may submit on the tentative.
APPERANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Hiep Huu Phan Represented By Toby T Tran
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
11:00 AM
Also # 14 EH
Docket 34
07/25/2018
On 01/30/2018 ("Petition Date"), Audrey Beck ("Debtor") filed her petition for chapter 7 relief. On April 6, 2018, the case was dismissed due to the Debtor’s failure to appear at the 341(a) meeting of creditors.
On April 17, 2018, the Debtor filed a motion to reopen her case indicating that she did not appear at the meeting of creditors because her attorney advised her not to appear.
On April 23, 2018, the Court issued an Order to Show Cause why Martin Rojas ("BPP") should not be sanctioned for improperly providing legal advice to the Debtor ("OSC"). The OSC was mailed but returned as undeliverable. An order reopening the case and vacating dismissal was entered on June 4, 2018.
On June 5, 2015, the Court issued an Order Continuing the OSC and resetting deadlines for a response by the BPP.
On June 29, 2018, the Office of United States Trustee ("UST") filed its Motion Of United States Trustee To Disgorge Fees And Impose Damages And Fines Against Bankruptcy Petition Preparer Martin Rojas ("Motion").
DISCUSSION
The BPP is an enjoined petition preparer previously adjudicated to be in contempt of court orders. Based on the BPP’s pattern of egregious conduct as outlined
11:00 AM
in the Motion, the UST requests the BPP be ordered to pay statutory damages of
$2,000, and fines directly to the UST in the sum of $19,000.
The UST has provided evidence that the BPP received $900 to prepare the Debtor’s bankruptcy documents, $100 to recover a payment to a prior petition preparer named John Davy, and $400 for preparation of a living trust. The Beck Declaration details the legal advice provided by the BPP, that he held himself out to Debtor as an attorney, and the fact that he advised her not to attend the meeting of creditors. Separately, the Mehra Declaration details orders entered in other bankruptcy cases in which the BPP has been enjoined from providing bankruptcy petition preparer services and holding him in contempt for his failure to comply with prior orders.
On the merits, the UST has provided evidence to support a conclusion that Martin Rojas is a bankruptcy petition preparer pursuant to § 110. The evidence further supports a finding that the BPP failed to sign bankruptcy documents, failed to provide his identifying number, that he provided legal advice to the Debtor, and that he failed to disclose the fees he received.
TENTATIVE RULING
Based on the moving papers, the evidence submitted by the UST, and the failure of the BPP to file opposition which this Court deems as consent to the granting of the Motion pursuant to LBR 9013-1(h), the Court’s tentative ruling is to GRANT the UST’s Motion in its entirety, ordering the BPP to disgorge $1,000 to the Debtor, to pay statutory damages of $2,000 to the Debtor, and to pay fines directly to the UST in the sum of $19,000.
APPEARANCES REQUIRED.
Debtor(s):
Audrey Beck Pro Se
11:00 AM
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq Mohammad Tehrani
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From: 5/30/18 Also # 13
EH
Docket 16
- NONE LISTED -
Debtor(s):
Audrey Beck Pro Se
Movant(s):
Audrey Beck Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
2:00 PM
Misty Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01309 Cisneros v. DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN
A. Cisneros against DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential Transfer (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
DOUGLAS J. ROGER, M.D., INC. Represented By
Summer M Shaw
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
EH
Docket 54
On December 18, 2013, Nabeel Slaieh ("Debtor") filed his petition for chapter 7 relief. On March 24, 2014, W E Jon Albrecht ("Plaintiff") filed the instant complaint to determine dischargeability of debt pursuant to § 523(a)(6). On June 13, 2018, the Plaintiff filed his Motion for Summary Judgment ("Motion"). On July 3, 2018, the Debtor filed his opposition to the Motion ("Opposition"). On the same date, the Debtor filed a substitution of attorney by which the Debtor indicated his intent to represent himself in propria persona going forward.
As a threshold matter, the Court must address the manner in which the Opposition was filed. Prior to the filing of the Substitution of Attorney Form, the Debtor was represented by George Saba ("Saba"). However, per the State Bar of California website, Mr. Saba has not been eligible to practice law in California since December 2017. Pursuant to the Court’s manual, Section 3.1(c) and Section 3.2(b), attorneys admitted to practice in the Central District of California, currently in good standing, are eligible to register as CM/ECF users with the rights to log in and file documents. Here, the Debtor, acting in pro per, is not eligible to file documents using CM/ECF and it was improper for Mr. Saba to use the CM/ECF system to improperly file a document for a party who he is no longer representing and who he is no longer able to represent given his ineligibility to practice law. Further, Section 3.2(d)(1) prohibits a registered user from knowingly permitting or causing to permit his or her
2:00 PM
login and password to be utilized by anyone. Here, Mr. Saba has violated the Court’s rules regarding CM/ECF filing. Based on the improper filing of the Opposition, the Court is inclined to issue an OSC why Mr. Saba’s CM/ECF rights should not be suspended or cancelled pursuant to Section 3.2(d)(3) of the Court Manual.
Based on the foregoing, the Court strikes the Opposition as improperly filed. A reply to the Opposition was filed on July 11, 2018 ("Reply"), as well as separately filed objections to the Declaration of Defendant in support of the Opposition (Docket No. 172).
A court may grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRBP 7056 (incorporating FRCP 56). In determining whether to grant a motion for summary judgment, courts must view the record and all inferences drawn from it in the light most favorable to the nonmoving party. Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th Cir.2011).
In support of the Motion, Plaintiff requests that this Court take judicial notice of (1) The Certified Copy of Complaint for Malicious Prosecution, RJN, Ex. 1, (2) the Certified Copy of Summons filed January 25, 2011, RJN, Ex. 2, (3) the Certified Copy of Proof of Service of Summons, RJN, Ex. 3, and (4) the Copy of Judgment, RJN, Ex. 4. The Court takes judicial notice of these filings.
Nondischargeability under § 523(a)(6)
Section 523(a)(6) excepts from discharge debts arising from a debtor's willful
2:00 PM
and malicious injury to another person. Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 706 (9th Cir.2008). The willful and malice requirements must be analyzed separately, Carillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (2002), and the court must determine that both have been met, Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th Cir. 2010).
"A ‘willful’ injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Barboza, 545 F.3d at 706, quoting Kawaauhau
v. Geiger, 523 U .S. 57, 61 (1998). To satisfy the willfulness requirement, it must be shown that the debtor either had "a subjective intent to harm or a subjective belief that harm is substantially certain." Su, 290 F.3d at 1144. When determining the debtor's intent under § 523(a)(6), there is a presumption that the debtor knows the natural consequences of his actions. Ormsby, 591 F.3d at 1206.
"A malicious injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ " Su, 290 F.3d at 1146–47, quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001). "Within the plain meaning of this definition, it is the wrongful act that must be committed intentionally rather than the injury itself." Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005), citing Murray v. Bammer (In re Bammer), 131 F.3d 788, 791 (9th Cir.1997)("This four-part definition does not require a showing of biblical malice, i.e., personal hatred, spite, or ill will. Nor does it require a showing of an intent to injure, but rather it requires only an intentional act which causes injury."). "Malice may be inferred based on the nature of the wrongful act." Ormsby, 591 F.3d at 1206, citing Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554 (9th Cir.1991)(determining that, in the case of conversion, malice may be inferred).
In the instant action, the Plaintiff obtained a judgment ("Judgment) in State Court as against the Defendant based on a complaint for malicious prosecution (the "State Action"). The Plaintiff now moves under a theory of collateral estoppel for summary judgment finding that the Judgment is nondischargeable under § 523(a)(6).
Collateral Estoppel
2:00 PM
A bankruptcy court may grant summary judgment based on the issue
preclusive effect of an existing state court judgment. See Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). In doing so, it must apply the forum state's issue preclusion law. Id. See also 28 U.S.C. § 1738. Here, California preclusion law applies.
In California, issue preclusion bars relitigation of an issue when: 1) the issue sought to be precluded is identical to that decided in a prior proceeding; 2) the issue was actually litigated in the prior proceeding; 3) the issue was necessarily decided in the prior proceeding; and 4) the decision in the prior proceeding is final and on the merits. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990). Additionally, in California, issue preclusion may only be applied if it furthers underlying public policies. See id. at 343.
The party asserting issue preclusion bears the burden of establishing these requirements. Id. at 341. To do so, "[the] party must produce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Any reasonable doubt as to what was decided by a prior judgment should be resolved against allowing [issue preclusive] effect." Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th Cir.BAP1995), aff'd, 100 F.3d 110 (9th Cir.1996).
Here, the Plaintiff obtained a Judgment on a malicious prosecution action under California law. The Court now turns to whether ‘malicious prosecution’ satisfies the requirements for collateral estoppel under California law.
Application of law to cause of action for malicious prosecution
In California, the common law tort of malicious prosecution provides a remedy for individuals subjected to maliciously instituted criminal and civil proceedings. In re Arden, 2015 WL 4068962, at *9 (9th Cir. BAP 2015)(citing Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871–72 (1989)). To establish a cause of action for malicious prosecution of a civil proceeding, the plaintiff must show "that the prior action (1) was commenced [or continued] by or at the direction of the defendant and was pursued to a legal termination in his [or her], plaintiff's, favor;
(2) was brought without probable cause; and (3) was initiated [or continued] with
2:00 PM
malice." Id., quoting Bertero v. Nat'l Gen. Corp., 13 Cal.3d 43, 50 (1974)(internal quotation marks omitted).
In Arden, the BAP specifically considered whether the tort of malicious prosecution satisfies both the willful and malicious prongs of § 523(a)(6):
"The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action." Estate of C. Delores Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir.2008) ("Tucker"), quoting Sheldon Appel Co., 47 Cal.3d at 874 (internal quotation marks omitted). However, the malice required in malicious prosecution "is not limited to actual hostility or ill will toward [the] plaintiff but exists when the proceedings are instituted primarily for an improper purpose." Albertson v. Raboff, 46 Cal.2d 375, 383 (Cal.1956). See also Tucker, 515 F.3d at 1030, quoting Sierra Club Found. v. Graham, 72 Cal.App. 4th 1135, 1147 (1999)("Sierra Club ").
The California Supreme Court has explained:
he principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person instituting them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are instituted of a beneficial use of his property; [or] (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.
Albertson, 46 Cal.2d at 383, quoting Rest., Torts § 676. Accordingly, in a malicious prosecution action, the proof may or may not establish a willful intent to injure on the part of the defendant.
Arden at *9-10.
2:00 PM
As underscored in Arden, willfulness is not a separate and distinct element of
the tort of malicious prosecution, though willfulness may be inferred from the debtor's intent in commencing or continuing litigation. Moreover, " ‘[m]erely because a tort is classified as intentional does not mean that any injury caused by the tortfeasor is willful.’ " Ditto v. McCurdy, 510 F.3d 1070, 1078 (9th Cir.2007), quoting Miller v.
J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 604 (5th Cir.1998). Here, the Judgment obtained against Defendant/Debtor was a default judgment and although the BAP found that ‘malicious prosecution’ likely satisfies the malice requirement under § 523(a)(6), it also specifically found that the ‘willfulness’ element was not necessarily decided by the state court because ‘willfullness’ is not required to enter judgment on a malicious prosecution cause of action. In Arden, the jury instructions indicated that the specific question of intent to injure was not posed to the jury. As such, the willfulness requirement was not necessarily decided or actually litigated by the state court. Similarly, the Judgment obtained by Plaintiff Albrecht did not require the State Court to consider, let alone determine whether Defendant Slaieh intended injury to Plaintiff. The Plaintiff’s Motion assumes the issue of intent was decided by the State Court. However, absent authority to distinguish the Arden case, whose reasoning this Court adopts as its own, the Motion does not satisfy the requirements for collateral estoppel because the Judgment is insufficient to establish the elements required under
§ 523(a)(6). It is possible that the issue of willfulness is subsumed by the state court’s determination that punitive damages were appropriate. However, such a theory must be addressed with reference to the Ninth Circuit BAP’s decision in In re Plyam that a California state court punitive damage award, standing alone, does not preclude relitigation of § 523(a)(6)'s "willful" intent requirement. In re Sangha, 678 F. App'x 561, 562 (9th Cir. 2017); Plyam v. Precision Development, LLC (In re Plyam), 530
B.R. 456, 463–65 (9th Cir. BAP 2015) (holding that "under California law, the general definition of malice in fact encompasses less reprehensible states of mind" than § 523(a)(6)'s "willful" intent requirement).
Finally, although the Court has stricken the Opposition as improperly filed, the Court shall also address the one cognizable legal issue raised in the Opposition – namely, that the State Action Complaint was not personally served on him. As to this issue, the Court agrees with the Plaintiff that the Defendant’s declaration fails to address whether and when he learned of the State Action. The declaration of Defendant is conspicuously silent on these facts and as such determined to be not credible on the issue of lack of service.
2:00 PM
Based on the foregoing, the Court is inclined to CONTINUE the Motion for additional briefing regarding the issue of "willfulness".
APPEARANCES REQUIRED.
Debtor(s):
Nabeel Slaieh Represented By George A Saba
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Movant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
2:00 PM
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
W.E. Jon Albrecht against Nabeel Slaieh. willful and malicious injury))
HOLDING DATE
From: 10/19/16, 12/14/16, 2/15/17, 3/29/17, 6/7/17, 10/25/17, 4/25/18
Also # 17 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nabeel Slaieh Represented By George A Saba
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays
2:00 PM
David Wood Matthew Grimshaw
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 11/2/16, 1/4/17, 3/1/17, 3/8/17, 6/7/17, 7/26/17, 9/13/17, 1/24/18, 3/7/18, 5/9/18, 5/30/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
2:00 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18, 5/16/18 Also #21 - #22
EH
Docket 42
On April 12, 2016, Jose Hernandez ("Debtor") filed a Chapter 7 voluntary petition. On July 7, 2016, the Chapter 7 Trustee ("Plaintiff") filed a complaint against Carolina Navarro ("Defendant") seeking the avoidance and recovery of a fraudulent transfer.
After default was entered against Defendant, on October 14, 2016, the parties stipulated to set aside default, and, that same day, Defendant filed her answer. On March 1, 2018, Plaintiff filed a motion for summary judgment. On April 4, 2018, Defendant filed her opposition.
Plaintiff alleges that on July 21, 2014, Debtor transferred certain real property located at 3510 Duffy St., San Bernardino, CA 92407 to Defendant for no consideration and that Debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer. Defendant received a Chapter 7 discharge on January 26, 2018.
2:00 PM
Violation of Discharge Injunction
As a preliminary matter, Defendant argues that because she obtained her own discharge in January, the continuation of this proceeding violates her discharge injunction. Specifically, Defendant argues that her discharge extinguishes her personal liability and that Trustee’s complaint seeks avoidance of the transfer and recovery of the property or its value. Defendant’s opposition states:
Notwithstanding his heightened knowledge of the provisions of the Bankruptcy Code and bankruptcy jurisprudence, the Trustee has pursued the same claims and remedies against Defendant after her discharge was granted, relieving her of any personal liability on account of the Trustee’s alleged claims and barring the Trustee from obtaining relief in this case. For example, the Trustee seeks judgment on his Fifth Claim, which as pled in the Complaint, alleges that "Plaintiff is entitled to recovery the Subject Property or its value from the Defendant Pursuant to § 550(a)."
[Dkt. No. 46, pg. 12-13].
Defendant’s argument is misleading and lacks merit. Regardless of the relief requested in the complaint, which was filed before Defendant obtained a discharge, Plaintiff’s motion for summary judgment has dropped the reference to "or its value" and only seeks recovery of the subject property. Nothing in the motion for summary judgment seeks to enforce a personal liability of the Defendant. Therefore, the Court rejects Defendant’s argument.
Motion for Summary Judgment
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. Rule 56(c) (incorporated by FED. R.
2:00 PM
BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324; see also FED. R. CIV. P. Rule 56(e). The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff requests summary judgment on the second claim for relief (avoidance of constructively fraudulent transfer) and the fifth claim for relief (recovery of avoided transfer). 11 U.S.C. § 548(a)(1)(B) states, in pertinent part:
(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily --
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such
2:00 PM
transfer or obligation
Defendant does not dispute that there was a transfer of an interest of property within 2 years before the petition date. Defendant does, however, dispute the satisfaction of the other two elements, arguing that Defendant received reasonably equivalent value and was not rendered insolvent by the subject transfer. See generally In re Fruehauf Trailer Corp., 444 F.3d 203, 210 (3rd Cir. 2006); In re Southern Textile Knitters, 65 Fed. Appx. 426, 436 (4th Cir. 2003) (outlining elements of § 548(a)(1)(B) action).
Regarding the requirement that reasonably equivalent value have been provided, Plaintiff asserts that the grant deed reflects that the transfer was a "bonafide gift and the grantor received nothing in return." In her opposition, Defendant argues that the language of the grant deed is inaccurate, and that she offered value in a variety of ways. Specifically, Defendant contends that she was a co-signer for the refinancing and "also provided consideration by contributing her wages to pay for household expenses and by providing domestic labor including cooking, cleaning, child-rearing, and running the parties’ household." [Dkt. No. 46, pg. 17, lines 7-9]. With regard to the language on the grant deed, Defendant states that:
The Grant Deed was not prepared by Debtor or Defendant. Debtor and Defendant correctly advised the loan officer who handled the refinancing that Defendant was not paying cash to Debtor for her one-half interest. For this reason, Debtor and Defendant believe the loan officer or escrow agent who prepared the Grant Deed noted on the document that the Transfer was a gift.
[Dkt. No. 46, pg. 5, lines 1-5].
In the reply, Plaintiff contends that "[a]fter first stating that it was a gift and nothing was received, the Debtor and Defendant should be estopped from now claiming it was not a gift and reasonably equivalent value was provided for the Subject Transfer." [Dkt. No. 51, pg. 4, lines 13-15].
The Court concludes that the parol evidence rule applies here to preclude the consideration of evidence which contradicts the plain and unambiguous language of the deed. See generally In re Khalil, 2014 WL 1725811 at *6-11 (Bankr. C.D. Cal. 2014) (collecting cases providing comprehensive analysis of the parol evidence rule in the context of grant deeds deed). As was noted in Khalil:
If there is no ambiguity on the face of the document, and no reference to
2:00 PM
information or terms in the recorded document or from the circumstances of
the conveyance that would lead a bona fide purchaser to inquire as to the intent and meaning of the instrument, then the bona fide purchaser is entitled to rely on the written record and is not charged with or bound by unstated meanings or by secret or collateral agreements that add to or alter the written record.
Id. at *10. While the above quotation is in the context of ownership interests in real property, rather than the nature of consideration, or lack thereof, in connection with a grant deed, the same underlying principle is applicable: "third parties, including the trustee and the estate’s creditors, must be able to rely on the terms of recorded deed." Id. at *11. See also id. at *10 ("As a general rule, when any ambiguity is not evident from the face of the instrument (i.e., a "latent" ambiguity), the deed must be construed solely from an analysis of the plain meaning of the document itself, and extrinsic evidence is not admissible."); Laux v. Freed, 53 Cal. 2d. 512, 523 (Cal. 1960) ("[I]f the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms.").
Regarding the insolvency requirement, Plaintiff first argues that given the absence of reasonably equivalent value, Debtor’s insolvency as a result of the transfer should be assumed; Plaintiff cites United States v. Mazzeo, 245 B.R. 435, 441 (E.D.N.Y. 1999). The Court declines to make such a presumption. The case cited by Plaintiff, and the related case law, deals with fraudulent transfer provisions under New York state law. See, e.g., Kim v. Ji Sung Yoo, 2017 WL 4382078 (S.D.N.Y. 2017) (noting presumption and collecting cases). No such burden shifting framework, however, exists under the Bankruptcy Code. See 5 COLLIER’S ON BANKRUPTCY ¶ 548.11[2] (16th ed. 2017) ("Under state law and the UFTA (and presumably the UVTA), a well- recognized exception permits the court to infer a proscribed financial state once the plaintiff has shown a lack of fair consideration or a lack of reasonably equivalent value. This shift should not apply to cases brought under section 548.") (footnotes omitted); see also In re Galbreath, 286 B.R. 185, 197 (Bankr. S.D. Ga. 2002) ("The burden for proving constructive fraud falls on the trustee who must show by a preponderance of the evidence that all requirements set out in § 548(a)(1)(B) have been met.")
Plaintiff next argues that Debtor’s insolvency can be established through a review of the schedules. Essentially, Plaintiff argues that the schedules indicate that Debtor was insolvent as of the petition date, and that the Court can work backwards to conclude that Debtor was insolvent on the date of the transfer. As one bankruptcy court has stated:
2:00 PM
Since insolvency at a given point in time is often difficult to demonstrate by direct proof, courts permit the trustee to show that the debtor was insolvent at one point in time and then prove that the same condition existed at the time of the subject transfer. This method of proof has been labeled "retrojection," but
it applies equally to situations in which the trustee starts at a point in time prior to the transfer. When the trustee chooses to use this method of proof it is essential that the trustee be able to show the absence of any substantial or radical changes in the assets or liabilities of the bankruptcy between the retrojection dates.
In re R. Purbeck & Assocs., Ltd., 27 B.R. 953, 955 (Bankr. D. Conn. 1983) (footnotes and quotation omitted). Plaintiff argues that the schedules reflect that Debtor had no meaningful unexempt assets as of the petition date while much of Debtor’s unsecured debt was identified as having been incurred prior to the date of the transfer.
Furthermore, Debtor’s statement of financial affairs does not disclose any significant transfers of property between the date of the subject transfer and the petition date.
In Defendant’s opposition, she appears to contend that Debtor’s outstanding debt on the date of the subject transfer was $210,282 and that Debtor’s assets were valued at approximately $224,000. The Court notes that these assertions do not demonstrate solvency – they demonstrate insolvency as that term is defined in the Code. 11 U.S.C.
§ 101(32)(A)(ii) exempts from the solvency requirement property which may be exempt under § 522. The assets listed in Debtor’s schedules, and in Defendant’s opposition, all appear to be assets capable of being exempted under § 522, thereby rendering Defendant statutorily insolvent. Even ignoring that fact, however, Defendant’s opposition indicates that Debtor had $53,186 in equity in the property; transferring a 50% interest in the property would have rendered Debtor insolvent even before removing property which can be exempted. As a result, the Court concludes that Plaintiff has demonstrated there is no genuine dispute regarding Debtor’s insolvency on the date of the subject transfer.
Recovery
Plaintiff also seeks recovery of the subject property pursuant to 11 U.S.C. § 550. 11
U.S.C. § 550(a)(1) states:
(a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title,
2:00 PM
the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from –
the initial transferee of such transfer or the entity for whose benefit such transfer was made
Defendant opposes the requested recovery, although the legal basis for the opposition is less than clear. Defendant argues that "annulment of the Transfer would have the effect of returning the Property to a single ownership since Debtor was the sole owner. Therefore, recovery of the Transfer is unnecessary and provides no benefit to the estate." [Dkt. No. 46, pg. 18, lines 15-17]. The Court’s interpretation of the Plaintiff’s request is that Plaintiff is requesting an order indicating that the Property has retained to single ownership (the bankruptcy estate). Therefore, it does not appear there is really any legal dispute here, semantical differences aside.
Withdrawal of Admissions
In light of the foregoing, the Court is inclined to deny Defendant’s motion to withdraw admissions as moot. The Court need not rely on admissions by default in resolving the instant motion for summary judgment.
The Court is inclined to GRANT the motion for summary judgment, avoiding the transfer as constructively fraudulent and permitting Trustee’s recovery of such transfer. Defendant’s motion to withdrawn admissions is DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
2:00 PM
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Larry D Simons Represented By Frank X Ruggier
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18, 5/16/18 Also #20 - # 22
EH
Docket 49
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By
2:00 PM
Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 9/7/16, 11/9/16, 1/11/17, 3/8/17, 4/12/17, 5/17/17, 6/7/17, 7/26/17, 9/27/17, 11/29/17, 1/10/18, 4/25/18, 5/16/18
Also #20 - #21
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
Also # 24 EH
Docket 46
On November 18, 2016, Javier & Carmen Lopez (collectively "Debtors"; individually, "Javier" and "Carmen") filed a Chapter 7 voluntary petition. On March 6, 2017, Amarillo College of Hairdressing ("Plaintiff") filed a non-dischargeability complaint against Javier pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). On July 12, 2017, the clerk entered default against Javier.
On October 17, 2017, Plaintiff filed a motion for leave to file an amended complaint to include Carmen as a defendant. On November 7, 2017, Debtors filed their opposition. On November 13, 2017, the Court granted the motion, and, on December 11, 2017, Plaintiff amended its complaint to include Carmen as a defendant. On February 26, 2018, the clerk entered default against Carmen.
On April 5, 2018, Plaintiff filed a motion for default judgment. According to Plaintiff,
2:00 PM
Javier, while employed as the Dean of Education at Plaintiff’s Palm Desert campus, received, through direct deposit, twice his agreed upon salary for a period of one year. Plaintiff asserts that the direct deposit authorization form contained a provision which granted Plaintiff the right to correct any erroneous overpayments of funds. After alerting Javier of the erroneous double payment, Javier refused to voluntarily reimburse Plaintiff for the overpayment. Plaintiff also asserts that Javier was aware of the erroneous double payment during the time when the double payments were made.
On January 2, 2014, Plaintiff filed a state court complaint against Javier for breach of contract, fraud, and conversion. On September 15, 2015, the state court granted Plaintiff’s motion for summary judgment as to all causes of action, and entered judgment in the amount of $49,603.08.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
2:00 PM
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Plaintiff served Debtors at the address listed on their bankruptcy schedules and served Debtor’s attorney via ECF. Therefore, service is proper.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes three causes of action, all related to non-dischargeability: (1) 11 U.S.C. § 523(a)(2)(A); (2) 11 U.S.C. § 523(a)(4); and (3) 11 U.S.C. § 523(a)
The above provisions read, in pertinent part:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
2:00 PM
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
The Court notes that it is, at best, unclear whether any of the three provisions are applicable to the facts here. For example, in In re Sterling, the bankruptcy court analyzed whether an employee’s retention of overtime pay at double the contractual rate satisfied the either 11 U.S.C. § 523(a)(2)(A) or 11 U.S.C. § 523(a)(6). 479 B.R. 444 (Bankr. E.D. Mich. 2012). Respecting 11 U.S.C. 523(a)(2)(A), the court first noted that the provision can apply to "misleading omissions" or "a scheme to deprive or cheat another of property or a legal right." Id. at 449. The bankruptcy court noted, however, that omission or silence only establishes the requisite intent if the debtor had an affirmative duty to disclose. Id. (applying Michigan law and the silent fraud doctrine). After noting that the plaintiff had not identified any contractual duty to disclose, the bankruptcy court noted that: "[a] duty to disclose may also arise in equity," but ultimately concluded the following:
The present case does not present any circumstances that would give rise to such an equitable duty. To the contrary, Plaintiff was in a position of control and had at least equal if not superior knowledge, gained from repeated, but unavailing attempts to correct the problem. Plaintiff, as Defendant’s employer, had access to the payroll information and, with the exercise of reasonable diligence, could have discovered the continuing overpayments at any time.
Id. at 450 (also questioning whether plaintiff’s reliance on defendant’s silence was justifiable because the information was in the control of plaintiff).
2:00 PM
Here, neither the complaint nor the motion for default judgment include any allegation that Javier affirmatively misled Plaintiff, nor do they contain any basis upon which the Court could conclude that Javier had a contractual or an equitable duty to disclose the overpayments to Plaintiff. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a) (2)(A).
11 U.S.C. § 523(a)(4) contains three different exceptions to dischargeability: (1) fraud or defalcation while acting in a fiduciary capacity; (2) larceny; and (3) embezzlement. Regarding fraud or defalcation while acting in a fiduciary capacity, the elements are:
(1) the existence of an express trust; (2) the debt was caused by fraud or defalcation; and (3) the debtor acted as a fiduciary to the creditor at the time the debt was created. See, e.g., In re Niles, 106 F.3d 1456, 1459 (9th Cir. 1997). Clearly Plaintiff has not satisfied the standard for fraud or defalcation while acting in a fiduciary capacity because, among other things, Javier was not acting in a fiduciary capacity as to his salary and his salary was certainly not the corpus express trust. See, e.g., Matter of Cantrell, 88 F.3d 344, 347 (5th Cir. 1996) ("The court also correctly opined that, in the absence of an express trust and a recognizable corpus, 11 U.S.C. § 523(a)(4) is inapplicable.").
Plaintiff also does not appear to have satisfied the standard for larceny or embezzlement. "Larceny is the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker’s use without the consent of the owner." 4 COLLIER’S ON BANKRUPTCY ¶ 523.10[2] (16th ed. 2009). Here, it appears doubtful that Javier could be considered to have "taken" the excess salary payments which Plaintiff caused to be directly deposited in Javier’s bank account. Embezzlement, on the other hand, contains three elements: "(1) property rightfully in the possession of a nonowner; (2) nonowner’s appropriation of the property to a use other than which it was entrusted; and (3) circumstances indicating fraud." In re Littleton, 942 F.2d 551, 555 (9th Cir. 1991). While there may be a colorable argument that embezzlement has occurred in this case, such an argument has not been detailed in the complaint or the motion for default judgment. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non- dischargeable pursuant to 11 U.S.C. § 523(a)(4).
2:00 PM
Regarding § 523(a)(6) the elements are: "(1) willful conduct, (2) malice, and (3) causation." See, e.g., In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995). Here, Plaintiff’s complaint simply recites the legal standard, notes that the state court awarded a judgment based, in part, on fraud, and Plaintiff’s motion for default judgment contains the material state court pleadings as an attachment. The Court deems the allegations in the complaint to be insufficient to establish non- dischargeability under § 523(a)(6). See In re Sterling, 479 B.R. 444, 452-455 (Bankr.
E.D. Mich. 2012) (detailing § 523(a)(6) analysis in context of retention of salary overpayment). Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
Finally, the Court notes that it appears Plaintiff has assumed that the use of issue preclusion is appropriate in this case, but has not briefed the issue.
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001).
2:00 PM
Additionally, the application of issue preclusion requires a "mandatory ‘additional’ inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted). The Court requires further briefing on the appropriateness of issue preclusion in this case, including legal arguments explaining how the applicable state court causes of action (presumably fraud by concealment) translate to the non-dischargeability standards.
The Court is inclined to CONTINUE the matter for further briefing.
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
2:00 PM
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Movant(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17, 2/1/18, 2/8/18, 3/22/18, 5/30/18
Also # 23 EH
Docket 1
- NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
2:00 PM
Trustee(s):
Eamon Jafari
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01026 United States Trustee for the Central District of v. Lambert et al
From: 3/21/18, 4/25/18 EH
Docket 1
07/25/2018
The UST has filed a Motion for Default Judgment which is set for hearing on August 1, 2018 at 11:00 a.m.
This Status Conference is continued to the same date and time.
APPEARANCES WAIVED.
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Defendant(s):
Timothy Wayne Lambert Pro Se
Lisa Renee Lambert Pro Se
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
2:00 PM
Plaintiff(s):
United States Trustee for the Central Represented By
Everett L Green
Trustee(s):
John P Pringle (TR) Pro Se
2:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
From: 3/28/18, 6/13/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:18-01123 First Home Bank v. Karadas
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:18-01117 Pringle v. Reyes
EH
Docket 1
- NONE LISTED -
Debtor(s):
Rolando Carlos Reyes Represented By Walter Scott
Defendant(s):
Reginald Reyes Represented By Walter Scott
Joint Debtor(s):
Florencia Aquino Reyes Represented By Walter Scott
Plaintiff(s):
John P. Pringle Represented By Brandon J Iskander
Trustee(s):
John P Pringle (TR) Represented By Lynda T Bui
2:00 PM
Brandon J Iskander
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 7/24/18 Also # 30
EH
Docket 11
Moving Defendant leads the analysis astray by conflating issues of standing to enforce the Consent Judgment with the question of standing of a Debtor-in-possession to prosecute a fraudulent conveyance action under § 548. However, that misdirection is rendered irrelevant once the focus shifts to the § 548 elements outlined in Plaintiff's opposition, and in particular on the glaring, inescapable conclusion that Plaintiff has failed to allege facts to support that a transfer occurred -- an essential element of a Section 548 cause of action.
Here the facts at issue pertain to the Defendants' alleged failure to act (at some point, although the Court is unclear of the basis for Plaintiff's allegation of a specific date for the transfer) to release or extinguish a junior lien against Debtor's property. But no specific affirmative act, or transfer of possession or ownership is alleged to have occurred. See Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282 (9th Cir. 1996) ("'[A] transfer is a disposition of an interest in property. The definition is as broad as possible. … Under this definition, any transfer of an interest in property is a transfer, including a transfer of possession, custody, or control even if there is no transfer of title, because possession, custody, and control are interests in property.") (citations omitted); Greenspan v. Orick, Herrington & Sutcliffe LLP (In re Brobeck, Phleger & Harrision LLP), 408 B.R. 318, 338 (Bankr. N.D. Cal. 2009) ("Within the confines of these general principles, the general rule is that "[t]he hallmark of a 'transfer' is a change in the rights of the transferor with respect to the property after the transaction."); In re Feiler, 218 B.R. 957, 960 (Bankr. N.D. Cal. 1998), aff'd, 230 B.R.
2:00 PM
164 (B.A.P. 9th Cir. 1999), aff'd, 218 F.3d 948 (9th Cir. 2000) ("Within the context of a fraudulent transfer, the definition of transfer is sufficiently broad to include a transfer that results in a modification of form or value of property transferred or a deposit into or withdrawal from a bank account.") (citations omitted); Kapila v. U.S. (In re Taylor), 386 B.R. 361, 369 (Bankr.S.D.Fla.2008) (debtor's waiver of an NOL carryback constitutes a transfer).
Here, Plaintiff simply hasn't alleged any change of rights in property after any particular transaction, nor has Plaintiff otherwise presented any authority for its proposition that the Defendants' failure to release the lien somehow constitutes a transfer. Basically, it appears here that what the estate MAY have is a right to enforce the Consent Judgment so as to compel extinguishment of the junior lien. But that question is not before the Court, and the Court takes no position on whether it is a viable cause of action or if the Debtor even has standing to prosecute it. For that reason, the Court is inclined to find that the Plaintiff has failed to state an actionable claim under the bankruptcy code, and therefore the Amended Complaint should be dismissed.
APPEARANCES REQUIRED
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Movant(s):
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 6/26/18, 7/24/18 Also # 29
EH
Docket 1
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 45
07/31/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Richard Daguman Sabac Represented By Nicholas M Wajda
Joint Debtor(s):
Lyn Cebrian Sabac Represented By Nicholas M Wajda
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
From: 4/24/18, 5/29/18 EH
Docket 55
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
10:00 AM
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK CASE DISMISSED: 7/25/18
EH
Docket 61
- NONE LISTED -
Debtor(s):
Ricky Antonio Scott Represented By Marc E Grossman
Joint Debtor(s):
Shemida Shiloni Scott Represented By Marc E Grossman
Movant(s):
WELLS FARGO BANK, Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK
EH
Docket 58
07/31/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ronald A Waters Represented By Paul Y Lee
Joint Debtor(s):
Trisha Waters Represented By Paul Y Lee
Movant(s):
MECHANICS BANK, INC., a Represented By Vincent V Frounjian
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 75
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
FREEDOM MORTGAGE Represented By Jason C Kolbe Nancy L Lee
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
10:00 AM
Riverside, California 92505
MOVANT: CHAMPION MORTGAGE COMPANY (NATIONSTAR MORTGAGE LLC, DBA)
From: 6/26/18 EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Suzanne Berry Represented By Christopher Hewitt
Movant(s):
Champion Mortgage Company Represented By Ashlee Fogle Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 43
07/31/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENIED as to § 362(d)(2) for lack of cause shown.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Joshua Aguilar Represented By Paul Y Lee
Joint Debtor(s):
Cynthia Rodriguez Represented By Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 25
- NONE LISTED -
Debtor(s):
Patricia Anne Goffney Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nancy L Lee
Trustee(s):
Arturo Cisneros (TR) Represented By Christina J O
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC CASE DISMISSED: 7/25/18
EH
Docket 31
- NONE LISTED -
Debtor(s):
Manuel James Ritchie Represented By Scott Kosner
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Angie M Marth Kelsey X Luu
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 7/10/18, 7/24/18 EH
Docket 34
07/10/2018
Service: Proper Opposition: Yes
The Debtor asserts that there is a sufficient equity cushion to protect Movant and requests an APO and opportunity to cure the missed May and June mortgage payments. The Debtor, however, has inadequately explained the reason for the defaults.
APPEARANCES REQUIRED.
Debtor(s):
Wayman L Guider Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CATHERINE OSBORN
EH
Docket 16
- NONE LISTED -
Debtor(s):
Gary Ray Osborn Represented By Summer M Shaw Jenny L Doling
Movant(s):
Catherine Osborn Represented By Robert S Altagen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: QUICKEN LOANS, INC
EH
Docket 10
07/31/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief pursuant to ¶¶ 3 and 6 of the prayer for relief. Request under § 362(d)
is DENIED based on the positive equity in the Property.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Judith Ann Hunter Pro Se
Movant(s):
Quicken Loans Inc. Represented By Jamie D Hanawalt
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: RICHARD PHELAN
EH
Docket 9
07/31/2018
Service: Proper Opposition: None
The real property declaration attached to the Motion is not signed. (Motion, p. 11). The Court is inclined to GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT as to ¶¶ 3 and 12. DENIED as to request for APO as moot.
The Movant shall file an amended real property declaration with holographic signature prior to lodging the order.
APPEARANCES WAIVED PROVIDED MOVANT HAS FILED AN AMENDED
REAL PROPERTY DECLARATION. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Donald Edward Marshall, Jr. Represented By Alexander Pham
Movant(s):
Richard Phelan Represented By Neil B Katz
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: THE COLONIES PACIFIC 19A, LLC
EH
Docket 12
07/31/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY requests for assumption deadline and APO as moot. GRANT request to lift stay as to personal property on premises except that such order is limited to lifting of the stay and does not alter the Movant’s obligation to comply with applicable state and local laws.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Harish S. Sharma Represented By Keith Q Nguyen
Joint Debtor(s):
Neha H. Sharma Represented By Keith Q Nguyen
10:00 AM
Movant(s):
THE COLONIES PACIFIC 19A, Represented By
Ronald K Brown
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 9
07/31/18
Service: Proper
Opposition: None, Response indicating Debtor does not have knowledge about the Property
GRANT relief from the stay under §§ 362(d)(1), (d)(2) and (d)(4). Court finds that bankruptcy case was part of a scheme to hinder, delay and defraud creditors based on unauthorized transfers affecting this property. The Court does not find bad faith as to the Debtor. GRANT waiver of 4001(a)(3) stay. DENY confirmation that no stay is in effect for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Davy Ortiz Pro Se
Movant(s):
HSBC Bank USA, National Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: 2014-2 IH BORROWER LP A DELAWARE LIMITED PARTNERSHIP
EH
Docket 8
07/31/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES REQUIRED.
Debtor(s):
Rachael Dene Thomas Pro Se
Movant(s):
2014-2 IH Borrower L.P., a Represented By Scott Andrews
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
FINAL HEARING
From: 7/17/18 EH
Docket 10
- NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/18/18 Also #19
EH
Docket 208
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17, 2/28/18, 3/21/18, 6/20/18,
7/18/18
Also #18 EH
Docket 1
02/28/2018
This hearing is vacated. The Status Conference is CONTINUED to March 21, 2018, at 2:00 p.m. The Court has provided notice to the parties of the continuance.
APPEARANCES WAIVED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
2:00 PM
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01116 Forte v. B & B Family, Incorporated
From: 7/24/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
Defendant(s):
B & B Family, Incorporated Represented By Todd L Turoci
Plaintiff(s):
Patricia Forte Represented By
D Edward Hays Laila Masud
2:00 PM
EH
Docket 156
BACKGROUND
The Debtor is a California Corporation that operates a commercial plumbing business. The Debtor’s President and sole owner is Joe Ruvalcaba ("Ruvalcaba"). The Debtor owns no real property. Its major assets are equipment and vehicles. The precipitating factors leading to the bankruptcy filing were high monthly payments with lenders (due to high interest rates), expenses related to breach of contract suits, and related holds placed on the Debtor’s bank accounts.
DISCUSSION
The debtor carries the burden of proving that a Chapter 11 plan complies with the statutory requirements for confirmation under §§ 1129(a) & (b). In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). The debtor must show that the plan is confirmable by a preponderance of the evidence. See id. at 654; see also In re Monarch Beach Venture, Ltd.,166 B.R. 428 (C.D.Cal.1993).
Ballot Results:
The Debtors timely transmitted the Plan and Disclosure Statement to all known Persons who hold Claims and Interests that are impaired under the Plan and who are therefore entitled to vote on the Plan. The Debtors received (5) five timely ballots. The votes were tallied as follows:
Class 1 Allowed Claims secured by Personal Residence: N/A
Class 2 Impaired Secured Claims: Classes 2B – 2G
2 ballots voted in favor, 100% of claims
Class 3 Priority Claims:
1 ballot in favor, 100% of claims
2:00 PM
Class 4 General Unsecured Claims,
2 ballots voted in favor, 100% of claims
A court can confirm a plan without resort to cram down if all impaired classes accept the plan. Here, all impaired classes have accepted the plan. Thus, cramdown is not required.
Confirmation Requirements under 11 U.S.C. §1129(a)
The Plan addresses the requirements of Bankruptcy Code 1129(a) as follows:
11 U.S.C. § 1129(a)(1): The Plan complies with all of the applicable provisions of the Bankruptcy Code, including sections 1122 and 1123.
11 U.S.C. § 1129(a)(2): The Debtor has complied with all of the Bankruptcy Code's applicable provisions.
11 U.S.C. § 1129(a)(3): Good faith in proposing a plan of reorganization is assessed by the bankruptcy judge and viewed under the totality of the circumstances. In re Jorgensen, 66 B.R. 104, 108-109 (9th Cir. BAP 1986). Good faith requires that a plan will achieve a result consistent with the objectives and purposes of the Code. Jorgensen, 66 B.R. at 109. It also requires a fundamental fairness in dealing with one's creditors. Id. The bankruptcy judge is in the best position to assess the good faith of the parties. Id. Here, having received no objections to confirmation, the Court finds that the First Amended Plan has been proposed in good faith pursuant to FRBP 3020(b)(2).
11 U.S.C. § 1129(a)(4): Debtor asserts that his Counsel will file a Fee Application on or before the Effective Date of the Plan. This satisfies the Bankruptcy Code's requirement that payments for services or for costs and expenses in or in connection with a case, or in connection with a plan and incident to a case, must be approved by, or subject to the approval of, the Court as reasonable.
11 U.S.C. § 1129(a)(5): Article III of the Plan regarding Means of Implementation requires Exhibits to the Disclosure Statement to disclose individuals that will serve as director/officers after compensation as well as insider compensation, etc. This provision does not appear to be addressed in the Plan and/or Disclosure Statement.
2:00 PM
Debtor to address.
11 U.S.C. § 1129(a)(6): does not apply to the instant case.
11 U.S.C. § 1129(a)(7): Each Person who holds a Claim or Interest in a Class that is impaired under the Plan either: (a) has accepted the Plan; or (b) will receive or retain under the Plan property of a value, as of the Effective Date, that is not less than that Person would receive or retain if the Debtor were liquidated under chapter 7 of the Bankruptcy Code. The Debtor has demonstrated that all impaired interest holders have both accepted the plan, and will likely receive or retain under the Plan value that is not less than they would receive under a chapter 7 liquidation. Notably, unsecured creditors are expected to receive a 100% payout.
11 U.S.C. § 1129(a)(8): Section 1129(a)(8) requires unanimity of all classes to consensually confirm a plan. That is, each impaired class must have affirmatively accepted the plan. The Ballot Tally above indicates that this requirement is satisfied because all impaired classes have affirmatively accepted the plan.
11 U.S.C. § 1129(a)(9): Section 1129(a)(9)(A) requires that holders of administrative claims and gap claims be paid "cash equal to the allowed amount of such claim" on the "effective date of the plan," unless the holder of a particular claim agrees to different treatment. Here, the Plan provides for the payment of outstanding administrative fees upon approval of fees and on the effective date.
11 U.S.C. § 1129(a)(10): This provision requires at least one class of claims that is impaired accept the plan. Classes 2, 3 and 4 have voted to accept the plan. Thus, this requirement is satisfied.
11 U.S.C. § 1129(a)(11): Plan confirmation is not likely to be followed by either the liquidation or the further financial reorganization of the Reorganized Debtors or any successor to the Reorganized Debtors. The Issa Declaration at ¶¶ 28-32 provides sufficient evidence that the Debtor will have sufficient funds on the Effective Date to pay Administrative Claims, US Trustee Fees, Allowed Gap Claims, Allowed Priority Tax Claims, and Class 4 Non-Tax Claims. As the business is no longer operating, payment of Class 3 claims will depend on objections to claims, and any potential recovery from prosecution of causes of action. As such, the Court finds this
2:00 PM
requirement is satisfied.
11 U.S.C. § 1129(a)(12): The treatment of Administrative Claims under the Plan satisfies the requirement of Bankruptcy Code section 1129(a)(12).
11 U.S.C. § 1129(a)(13): does not apply to the instant case.
11 U.S.C. § 1129(a)(14): does not apply to the instant case.
11 U.S.C. § 1129(a)(15): does not apply to the instant case.
11 U.S.C. § 1129(a)(16): The Plan provides for transfers in accordance with applicable nonbankruptcy law in the provision entitled "Article III, Means of Implementation, Funding". This provision is satisfied.
TENTATIVE RULING
As set forth above, the Debtor’s First Amended Plan complies with the requirements of section 1129 except that the Debtor has not addressed the § 1129(a)(5) as required under the code. Debtor to address.
APPEARANCES REQUIRED.
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
Movant(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano David Lozano David Lozano David Lozano David Lozano
2:00 PM
Also #21 EH
Docket 113
- NONE LISTED -
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
Movant(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano David Lozano David Lozano David Lozano David Lozano
2:00 PM
Docket 370
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Plaintiff(s):
Zamucen & Curren LLP Represented By Patricia J Grace
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
From: 4/24/18 EH
Docket 8
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
10:00 AM
$25,099.68
From: 7/11/18 EH
Docket 14
- NONE LISTED -
Debtor(s):
Jess Wayne Markham Represented By Stephen H Darrow
Joint Debtor(s):
Marie B Markham Represented By Stephen H Darrow
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
From: 7/11/18 EH
Docket 42
On July 21, 2011, John & Carolyn Vega ("Debtors") filed a Chapter 7 voluntary petition. On November 2, 2011, Debtors received a discharge and five days later the case was closed.
On March 1, 2017, UST filed a motion to reopen the case to investigate and administer litigation settlement proceeds. On December 12, 2017, the Chapter 7 trustee filed two motions to approve compromise. The first motion, between the estate and the debtors and primarily relating to the amount of Debtors’ exemption in the proceeds, was granted on January 5, 2018. The second motion was set for hearing and is under consideration now.
11:00 AM
Pursuant to the instant compromise motion the Trustee requests: (1) approval of the compromise of the products liability action; (2) authorization to employ Audet & Partners LLP and Levin Simes LLP as co-special counsel and payment of their compensation; and (3) related relief, including approval of the settlement payment disbursements. No opposition to the instant compromise motion has been filed.
FED. R. BANKR. P. Rule 9019(a) states: "On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct." The Court may grant approval if it determines that the compromise is "fair and equitable." See In re Berkeley Delaware Court, LLC, 834 F.3d 1036, 1039 (9th Cir. 2016). In determining whether the compromise is fair and equitable, the Court applies a four-factor test. See In re DiCostanzo, 399 Fed. Appx. 307, 308 (9th Cir. 2010). The test was originally outlined in In re A & C Props., and provides for consideration of
The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it;
(d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
784 F.2d 1377, 1381 (9th Cir. 1986) (quotation omitted). "The bankruptcy court has great latitude in approving compromise agreements." In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988). Typically, "a compromise should be approved unless it falls below the lowest point in the range of reasonableness." In re Art & Architecture Books of the 21st Century, 2016 WL 1118742 at *25 (Bankr. C.D. Cal. 2016) (quotation omitted).
The proposed settlement here, however, presents a unique situation. The proposed settlement represents an "aggregate settlement" negotiated in the context of,
11:00 AM
presumably, state or federal district court litigation. The proposed settlement has not been disclosed to the Court on the basis that it contains a confidentiality provision. Furthermore, Trustee motions lacks detail in its description of the situation. The nature, extent and value of Debtor’s claim are completely unknown to this Court. The factual situation giving rise to Debtor’s claim is unclear, and the Court lacks any ability to estimate the value of the claim. Furthermore, as a result of the absence of information, the Court lacks the information necessary to determine the reasonableness of the requested attorney’s fees.
The Bankruptcy Code demonstrates a preference for public access to the proceedings. See 11 U.S.C. § 107 (2010). There are procedures by which certain documents, including settlements, can be classified as confidential. See, e.g., In re Oldco M Corp., 466 B.R. 234 (Bankr. S.D.N.Y. 2012); In re Hemple, 295 B.R. 200 (Bankr. D. Vt.
2003). In order for the Court to apply the legal standards of 11 U.S.C. § 107, the Court must be given an opportunity to review the material and make a determination regarding whether the matter is entitled to confidentiality.
The Court is inclined to DENY the motion or CONTINUE the matter for supplemental evidence and analysis.
APPEARANCES REQUIRED.
Debtor(s):
John Vega Represented By
Jenny L Doling
Joint Debtor(s):
Carolyn Vega Represented By Jenny L Doling
11:00 AM
Movant(s):
Lynda T. Bui (TR) Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
From: 5/15/18, 6/26/18 EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Yelena Gurevich
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt Jessica L Carter
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK
From: 6/26/18, Advanced from 8/31/18 EH
Docket 38
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Yolanda Llamas Represented By Rebecca Tomilowitz
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 112
On October 3, 2013, Iraj Maqsoudi ("Debtor") filed a Chapter 7 voluntary petition. On January 14, 2014, Debtor obtained a discharge. On January 15, 2014, Trustee filed an application to employ Wesley H. Avery, APC ("Counsel") as general bankruptcy counsel. That application was approved by the Court on February 13, 2014.
On January 21, 2014, Trustee filed a complaint against Mandana Banihashem for: (1) avoidance and recovery of fraudulent transfer; (2) avoidance and recovery of preferential transfer; and (3) accounting and turnover. Ultimately, on September 4, 2015, Trustee prevailed on summary judgment with regard to nine of the eleven causes of action.
On January 30, 2014, Trustee filed a complaint Debtor (1) to revoke the Debtor’s discharge; and (2) for an accounting and turnover. Ultimately, this adversary was voluntarily dismissed by Trustee on July 12, 2016.
On December 2, 2015, the Court approved Trustee’s application to employ Neiman Realty ("Broker") as a real estate broker. On March 22, 2016, the Court approved the sale of certain real property located at 11889 Magnolia Ave., Riverside, CA 92503, which was the subject of the transfer adversary proceeding, for the amount of
$692,000.
On October 19, 2016, the Court approved Trustee’s application to employ Donald Fife ("Accountant") as accountant.
On February 2, 2017, Counsel filed a fee application in the aggregate amount of
11:00 AM
$158,944.97.1 On April 3, 2017, Accountant filed a fee application in the aggregate amount of $2,401.10. Pursuant to Court order entered April 3, 2017, the Court also allowed an administrative expense for the attorney for creditor Mustafa Mayar, who conducted an examination of Debtor in the case, in the total amount of $8,491.02.
11 U.S.C. § 330(a)(3) (2005) provides factors to be considered in determining the reasonableness of requested compensation. After a review of Counsel’s fee application, the Court has significant concerns with the amount requested, primarily based upon the excessiveness of the amounts billed, and the fact that the entire case was billed at $475/hour without any time billed by associations or paralegals at lower rates. For example, the first day that Counsel worked on the case, January 13, 2014, Counsel lists the following time entries (with the amount charged):
-Telephone conference with the Trustee regarding new matter: $95
-Review of encumbrances against commercial building and calculation of approximate fair market value: $712.50
-Review of motion for relief from stay filed by judgment creditor: $427.50
-Legal research in support of Trustee’s opposition to motion for relief from stay filed by judgment creditor: $237.50
-Preparation of Trustee’s opposition to motion for relief from stay filed by judgment creditor, and preparation of Memorandum of Points and Authorities in support thereof: $2,042.50
-Preparation of declarations in support of Trustee’s opposition to motion for relief from stay filed by judgment creditor; telephone call with the Trustee’s broker re same: $1,330
-Review and analysis of Notice of Claims Bar Date: $95
-Review of encumbrances against residence and calculation of approximate fair market value: $570.
The Court notes the following concerns with Counsel’s billing on the first day on the case. First, 4.3 hours for the opposition and points and authorities appears excessive, given that the documents contain two paragraphs, two additional sentences, and some "fill-in-the-blank" responses. Second, 2.8 hours for the declarations appears excessive, given that each declaration is approximately one- page long. Third, the totality of 11.6 hours for what constituted opposing the relief
11:00 AM
from stay and, possibly, some minor case research, appears excessive. This is especially true in light of the fact that by the time Counsel had completed the opposition to the relief from stay, it had billed 10.2 hours for the day. The opposition, however, was filed at 3:50 p,m,, implying that the telephone conference with the Trustee must have started no later than 5:38 a.m., even if Counsel worked continuously on the matter thereafter.
The issues noted above are not the exception in the billing summary submitted by Counsel, but, rather, the trend. Similarly, on March 10th and 11, 2014, Counsel billed nine hours for opposing Debtor’s motion to convert to Chapter 13; Trustee’s opposition was not extensive and Debtor’s schedules indicated he had no disposable income at the time. Likewise, on October 31-November 1, 2016, Counsel billed 7.4 hours for preparation of the fee application narrative, which is approximately five pages long and mostly form language. Finally, between May 28, 2015 and June 10, 2015, Counsel billed 21.8 hours for the preparation of the pleadings related to the summary judgment motion in the § 548 adversary proceeding, which appears to include more than seven hours billed for the preparation of the Trustee’s real estate broker’s declaration, a declaration which was approximately a page and contained various broker documents as exhibits.
Additionally, Counsel’s billing entries appear to include excessive charges for relatively routine tasks. The following are some of the examples:
1/16/14 – "Review of the discharge of the Debtor" -- $47.50
3/25/14 – "Review and analysis of tentative ruling for status conference" -- $95 4/30/14—"Preparation of request for mediation and order thereon" (two entries) --
$950
7/19/14 – "Review and analysis of Mediator’s certificate" (two entries) -- $95 10/14/15-10/15/14 –Preparation of status reports for two status conferences --
$1,975
12/3/15 -- Preparation of two, relatively simple orders -- $950
While the issues noted above may be representative of the concerns with Counsel’s fee application, the issues are by no means limited to the entries listed above.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Iraj Maqsoudi Represented By
Thomas W Gillen - DISBARRED - John F Brady
Trustee(s):
John P Pringle (TR) Represented By Wesley H Avery
11:00 AM
Docket 53
8/1/2018
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,066.88 Trustee Expenses: $ 52.02
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Henrico Guillermo Vidales Represented By Yolanda Flores-Burt
Joint Debtor(s):
Guillermina Vidales Represented By Yolanda Flores-Burt
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 183
On February 26, 2016, Sam & Greeta Dason ("Debtors") filed a Chapter 7 voluntary petition. On February 22, 2017, the Court approved the employment application of Ramsaur Law Office ("Applicant") to serve as Trustee’s counsel. On March 6, 2017, the Court approved Trustee’s application to employ GlassRatner as real estate broker. On March 7, 2017, the Court approved the application of Karl T. Anderson CPA, Inc. to serve as Trustee’s accountant. Since the employment of these professionals, the Court has approved a Rule 9019 compromise [Dkt. No. 133] and two § 363 sale motions [Dkt. Nos. 146 & 172].
.
On July 11, 2018, Applicant filed the instant fee application. Local Rule 2016-(1)(a)(2)(A) states, in part:
In all cases where the employment of more than one professional person has been authorized by the court, a professional person who files an application for interim fees must give other professional persons employed in the case not less than 45 days notice of the date and time of the hearing.
Here, there was more than one professional person employed, yet Applicant did not comply with the above rule. Therefore, the Court is inclined to CONTINUE the hearing to September 26, 2018, at 11:00 a.m. to comply with
11:00 AM
the above rule.
Debtor(s):
APPEARANCES WAIVED. Movant to file and service notice of continuance.
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
Docket 20
On January 31, 2018, Karin Olaya ("Debtor") filed a Chapter 7 voluntary petition. On June 29, 2018, Debtor filed a motion to convert case under 11 U.S.C. § 706(a). On July 3, 2018, the Court entered an order setting the matter for hearing [Dkt No. 21]. The Court’s order identified service and notice requirements, which were not complied with, and also stated that: "The Debtor is to specifically address the request for conversion in light of Schedule J showing negative disposable income." No supplement or reply was filed by Debtor. On July 6, 2018, Trustee filed opposition to the conversion motion.
Debtor’s schedules identify an interest in real property located at 12310 Columbia Ln., Mira Loma, CA 91752 (the "Property"). The schedules list the value of the property as
$565,000, a lien in the amount of $334,150, a second lien in the amount of $150,000 and an exemption of $100,000. Trustee believes the Property is undervalued by approximately $100,000, which would provide for equity in the Property above Debtor’s exemption. Debtor’s schedules I and J list disposable income of -$50.32 per month.
11:00 AM
11 U.S.C. § 706(a) (2005) states:
The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable.
The Supreme Court has recently held that this right to conversion is not absolute. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 373-74 (2007); see also In re Santos, 561 B.R. 825, 829 (Bankr. C.D. Cal. 2017) ("Therefore, Marrama concluded that an individual whose potential Chapter 13 case was subject to dismissal or conversion under § 1307(c) was not entitled to a right to convert. Because §
1307(c) provides for conversion or dismissal "for cause", it follows that the Court has the authority to deny conversion "for cause".).
Trustee identifies three reasons why conversion should be denied: (1) Debtor has no disposable income to fund a plan; and (2) the undervaluation of the Property and the instant conversion motion suggest Debtor is proceeding in bad faith.
While both of these reasons, independently and in combination, may contribute to a conclusion that there exists cause for dismissal or conversion pursuant to § 1307(c), the first reason is determinative in this situation. 11 U.S.C. § 1307(d) states: "Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter." 11 U.S.C. § 109(e) requires an individual filing under Chapter 13 to be an "individual with regular income". And 11 U.S.C. § 101(30) defines "individual with regular income" as an: "individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under Chapter 13 of this title, other than a stockbroker or a commodity broker." Debtor’s schedules, which identify a net income of -$50.32, compel a conclusion that Debtor is not an "individual with regular income" within the meaning of the Code, and, therefore, Debtor is ineligible to
11:00 AM
be a Chapter 13 debtor at this time. Because Debtor is ineligible to be a Chapter 13 debtor, her case cannot be converted pursuant to § 706(d).
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Karin Olaya Represented By
Edward T Weber
Movant(s):
Karin Olaya Represented By
Edward T Weber
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
11:00 AM
Docket 20
On April 6, 2018, Jose & Otilia Gutierrez ("Debtors") filed a Chapter 7 voluntary petition. The meeting of creditors was originally set for May 8, 2018. On July 9, 2018, UST filed a motion for an extension of time to file a complaint objecting to discharge. UST asserts that Debtor has connections to several business entities and has not yet adequately complied with UST’s requests for financial records. The meeting of creditors has been continued several times.
FED. R. BANKR. P. Rule 4004(a) states:
In a chapter 7 case, a complaint, or a motion under § 727(a)(8) or (9) of the Code, objecting to the debtor’s discharge shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). In a chapter 11 case, the complaint shall be filed no later than the first date set for the hearing on confirmation. In a chapter 13 case, a motion objecting to the debtor’s discharge under § 1328(f) shall be filed no later than 60 days
11:00 AM
after the first date set for the meeting of creditors under § 341(a). At least 28 days’ notice of the time so fixed shall be given to the United States trustee and all creditors as provided in Rule 2002(f) and (k) and to the trustee and the trustee’s attorney.
And FED. R. BANKR. P. Rule 4004(b) states:
On motion of any party in interest, after notice and hearing, the court may for cause extend the time to object to discharge. Except as provided in subdivision (b)(2), the motion shall be filed before the time has expired.
A motion to extent the time to object to discharge may be filed after the time for objection has expired and before discharge is granted if (A) the objection is based on facts that, if learned after the discharge, would provide a basis for revocation under § 727(d) of the Code, and (B) the movant did not have knowledge of those facts in time to permit an objection. The motion shall be filed promptly after the movant discovers the facts on which the objection is based.
Here, the delay in providing information adequate to assess the financial circumstances of Debtor constitutes sufficient cause to extend the deadline. See COLLIER ON BANKRUPTCY ¶ 4004.03[2] (16th ed. 2013) ("A debtor’s delays in responding to discovery may be sufficient cause. Obviously, a delay in the meeting of creditors to a date close to or after the deadline may constitute such cause.") (citing In re McCormack, 244 B.R. 203 (Bankr. D. Conn. 2000)).
Moreover, Debtor’s failure to oppose may be deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion and EXTEND the deadline to file an
11:00 AM
objection to discharge to September 7, 2018.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jose D. Gutierrez Represented By Keith Q Nguyen
Joint Debtor(s):
Otilia Gutierrez Represented By Keith Q Nguyen
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Docket 21
On November 3, 2017, AF Howlader, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On June 1, 2018, Michael Snow ("Creditor") filed a proof of claim in the amount of $3,250,000 ("Claim 3"). On June 27, 2018, Trustee filed an objection to Claim 3. On July 19, 2018, Creditor filed a response to Trustee’s objection.
Trustee argues that it is unclear whether Debtor is liable for Claim 3, and additionally argues that Claim 3 is not supported by adequate supporting documentation. The Court notes that Trustee failed to use the Court’s mandatory claim objection form.
Claim 3 states that it is based on a personal injury lawsuit, and Creditor attaches a copy of a state court complaint filed on October 25, 2016. Among the defendants listed in the state court complaint is Sporty Gift Shoppe ("SGS"). According to the state court complaint, Creditor purchased an e-cigarette from a retail kiosk of SGS which, after four days, exploded in his face, causing "severe facial bleeding and disfigurement." Trustee acknowledges that Debtor operated SGS, but asserts that the legal relationship between the two entities is unclear. Trustee further argues that
11:00 AM
liability has not yet been established because the state court litigation is not complete.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11:00 AM
Here, Trustee has asserted that the legal relationship between Debtor and SGS is unclear, shifting the burden to Creditor to establish that Debtor is in fact liable for Claim 3. Creditor has responded by presenting Debtor’s answer in state court, which establishes that SGS was the dba of Debtor. This is consistent with the results of Trustee’s business entity search, which indicate that SGS was not a separate legal entity. As a result, the evidence compels the conclusion that Debtor and SGS are one and the same, and Trustee’s argument should be rejected.
Trustee also asserts that Claim 3 should be disallowed because the state court has not yet issued judgment. 11 U.S.C. § 101(5) defines claim as:
right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
right to an equitable remedy, for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured
11 U.S.C. § 502 enumerates categories of claims which will be disallowed. Pertinently, § 502(b)(1) states the following:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall
11:00 AM
determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition and shall allow such claim in such amount, except to the extent that –
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured;
And 11 U.S.C. § 502(c) states that:
There shall be estimated for purposes of allowance under this section –
any contingent or unliquidated claims, the fixing of liquidation of which, as the case may be, would unduly delay the administration of the case; or
any right to payment arising from a right to an equitable remedy for breach of performance
The legal provisions recited above make clear that the fact that a claim is contingent, unliquidated or unmatured is not a basis for the disallowance of a claim, and Trustee’s argument must be rejected.
The Court is inclined to OVERRULE the objection. Trustee to inform Court whether it wishes to seek a valuation of Claim 3.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
AF Howlader, Inc. Represented By Dina Farhat
Movant(s):
Steven M Speier (TR) Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Adv#: 6:18-01026 United States Trustee for the Central District of v. Lambert et al
EH
Docket 14
On June 4, 2017, Timothy and Lisa Lambert ("Debtors") filed a Chapter 7 voluntary petition. The Court extended the time to file a complaint objecting to discharge on two occasions: (1) on October 5, 2017 (Dkt. No. 17); and (2) on November 9, 2017 (Dkt.
No. 26).
On January 19, 2018, UST filed a complaint against Debtor for denial of discharge pursuant to § 727(a)(2), (a)(3), (a)(4) and (a)(5), or, alternatively, for dismissal of the bankruptcy case pursuant to § 707(b)(3) and § 349. On April 12, 2019, default was entered against Debtors. On July 10, 2018, UST filed a motion for default judgment.
UST’s complaint arises out of Debtors’ ownership of a Michigan LLC called Rainbow Recovery & Transport ("Rainbow Recovery"). According to UST, Debtors "solicited individuals to provide funds to them or Rainbow Recovery based on misrepresentations," and then undertook various actions to hinder their creditors’ collection efforts. UST also asserts that Debtors schedules and statement of financial
11:00 AM
affairs omitted various recreational vehicles purchased in 2017, omitted the sale of undeveloped real property, which also occurred in 2017, and omitted the sale of Rainbow Recovery, which, again, occurred in 2017, and, as a result of which, Debtors were received installment payments.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing
11:00 AM
a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Plaintiff properly served Debtors and their counsel at their addresses of record.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes five causes of action: § 727(a)(2), (a)(3), (a)(4), (a)(5), and, alternatively, § 707(b)(3) and § 349. The memorandum of points and authorities in support of UST’s motion for default judgment only explicitly addresses § 727(a)(4) and (a)(2), and implicitly contains a preference for § 727(a)(4), referring to § 727(a)
as alternative request.
Regarding § 727(a)(2)(A), that provision states:
The court shall grant the debtor a discharge, unless –
The debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed,
11:00 AM
or has permitted to be transferred, removed destroyed, mutilated, or concealed –
property of the debtor, within one year before the date of the filing of the petition
Here, UST has asserted a creditor of Debtors, Cal-Tenn, notified Debtors on February 17, 2017 of its intent to conduct a judgment examination. In the month before and after that notice, Debtors sold Rainbow Recovery for $7,500, sold an acre of real property for $6,100, sold their home and received $50,637.57 in net proceeds, transferred funds from Rainbow Recovery’s accounts to their personal accounts, and, while no date is identified, ostensibly purchased recreational vehicles. UST further alleges that none of the proceeds received by Debtors were applied to the debt owing Cal-Tenn or any of Debtors’ other judgment creditors. Finally, UST asserts that Debtors engaged in the enumerated transactions with the intent to hinder, delay or defraud their creditors. Therefore, the elements of § 727(a)(2)(A) have been satisfied.
The Court need not reach the alternative requests of UST because judgment is proper pursuant to § 727(a)(2)(A).
Amount of Damages
Here, UST is not requesting any damages, and, therefore, no evidence is required establishing the amount of damages.
11:00 AM
The Court is inclined to GRANT the motion, DENYING Debtor a discharge pursuant to 11 U.S.C. § 727(a)(2)(A).
APPEARANCES REQUIRED.
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Defendant(s):
Timothy Wayne Lambert Pro Se
Lisa Renee Lambert Pro Se
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
Movant(s):
United States Trustee for the Central Represented By
Everett L Green
Plaintiff(s):
United States Trustee for the Central Represented By
Everett L Green
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Adv#: 6:18-01026 United States Trustee for the Central District of v. Lambert et al
From: 3/21/18, 4/25/18, 7/25/18 Also #11
EH
Docket 1
07/25/2018
The UST has filed a Motion for Default Judgment which is set for hearing on August 1, 2018 at 11:00 a.m.
This Status Conference is continued to the same date and time.
APPEARANCES WAIVED.
Debtor(s):
Timothy Wayne Lambert Represented By Edgar P Lombera
Defendant(s):
Timothy Wayne Lambert Pro Se
Lisa Renee Lambert Pro Se
11:00 AM
Joint Debtor(s):
Lisa Renee Lambert Represented By Edgar P Lombera
Plaintiff(s):
United States Trustee for the Central Represented By
Everett L Green
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
EH
Docket 108
The Motion seeks an order permitting continued case administration pursuant to FRBP 1016 and waiver of the application and certification requirements of Section 1328 and 522(q) owing to the death of the Joint Debtor, Timothy Carroll. In support, Terri Carroll has submitted a declaration signed under penalty of perjury attesting to her completion of plan payments and to the death of her spouse. Moreover, the Court notes that no objection or opposition to the Debtors’ request has been filed.
Based on the foregoing, in particular given the completion of plan payments due under the terms of the confirmed plan, the Court finds that a discharge is warranted as to both Debtors and is in the best interest of all parties. The Motion is GRANTED. Case administration may continue pursuant to FRBP 1016 and Timothy Carroll is excused from compliance with §§ 1328 and 522(q) of the Code.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Timothy P Carroll Represented By Emilia N McAfee
Joint Debtor(s):
11:00 AM
Terri Sue Carroll Represented By Emilia N McAfee
Movant(s):
Timothy P Carroll Represented By Emilia N McAfee
Terri Sue Carroll Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 47
- NONE LISTED -
Debtor(s):
Brooke Stone Represented By Jenny L Doling
Movant(s):
Brooke Stone Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 198
- NONE LISTED -
Debtor(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Movant(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 90
- NONE LISTED -
Debtor(s):
Donnita M. Oliver Represented By Michael Smith Sundee M Teeple
Movant(s):
Donnita M. Oliver Represented By Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/28/18 Also #6
EH
Docket 64
- NONE LISTED -
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Movant(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 EH
Docket 66
- NONE LISTED -
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:16-01277 Reynoso v. Goodman et al
Docket 97
08/02/2018
BACKGROUND
On September 12, 2016, Douglas and Anne Goodman (collectively, "Debtors" or "Defendants") filed their petition for chapter 13 relief.
On November 11, 2016, Mark and Natasha Reynoso (collectively, "Plaintiffs") filed a complaint seeking determination of the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) (the "Complaint"). Specifically, Plaintiffs allege that in 2015, they purchased real property located at 1656 West Lisbon Street in Upland, CA (the "Property") from the Debtors, and that a sale was consummated on the misrepresentations of the Debtors’ agent, Theresa Mann, that the Property was 3,231 square feet while Plaintiffs assert that the Property is actually 2,713 square feet (or a difference of 518 square feet). Plaintiffs also assert that they were led to believe that a water leak in the upstairs bathroom had been repaired. Plaintiffs allege that the Debtors knew or should have known that their agent was making false and misleading representations to Plaintiffs.
On February 3, 2017, the Court entered an order granting Defendants first motion to dismiss the Complaint, with leave to amend. A First Amended Complaint (the "FAC") was filed on February 28, 2017. On April 19, 2017, the Plaintiffs filed a First Amended Complaint captioned "Corrected" which indicated it had been corrected for typographical errors. (the "Corrected Complaint"). The Court denied Defendants’ second motion to dismiss at a hearing on May 4, 2017. On June 5, 2017, the Defendants filed their Answer to the FAC ("Answer").
On March 9, 2018, the Defendants moved to dismiss the April 19, 2018,
11:00 AM
complaint. The Court granted the motion to dismiss the April 19, 2018, complaint with leave to amend. A second amended complaint was then filed on May 23, 2018 (the "SAC"). [Note: there is a dispute regarding whether the operative complaint is a second or third amended complaint due to the filing of the "corrected complaint" indicated above. For purposes of this hearing, the operative complaint is Docket No. 93]. Defendants now move to dismiss the SAC. No opposition has been filed by the Plaintiffs.
DISCUSSION
As a threshold matter, the Motion seeks relief pursuant to Rule 12(b)(6).
However, given that the Defendants have filed an Answer to the FAC, the Court shall construe the Motion as a motion under Rule 12(c), a motion for judgment on the pleadings.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Knappenberger v. City of Phx., 566 F.3d 936, 939 (9th Cir.2009) (quoting Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995)).
On a Rule 12(c) motion, the court must accept as true all the material facts alleged in the complaint and must draw all reasonable inferences in favor of the non- moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). In ruling on a Rule 12(c) motion, the court may not consider extrinsic evidence unless the motion is converted into a Rule 56 summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989) (citing Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982)). However, a court may consider facts that are contained in materials of which the court may take judicial notice when considering a motion for judgment on the pleadings. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir.1999) (quoting Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994)).
The crux of Defendants’ argument for dismissal of the FAC is that Plaintiffs have not set forth the basis for a money judgment under state law. In the Court’s
11:00 AM
tentative ruling on the motion to dismiss the FAC, the Court stated the following:
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469 B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014). Here, although the Complaint is not explicit regarding the state law causes of action at issue, it appears implicit in the allegations that the Plaintiffs seek a monetary judgment as to a fraud or misrepresentation claim.
Nonetheless, Plaintiffs should not have to guess at the state law basis of the debt for a money judgment.
Here, the SAC has added bases for calculation of damages under state law but has still not set forth the state law basis for the monetary judgment.
Thus, the Plaintiffs have still not addressed the concerns raised by the Court and Defendants that they do not have sufficient notice of the basis for a monetary judgment such that the Defendants can adequately defend themselves in the action.
TENTATIVE RULING
Based on the foregoing, including the Plaintiffs failure to file opposition to the Motion to Dismiss which can be deemed as consent to the granting of the Motion pursuant to LBR 9013-1(h), the Court is inclined to GRANT the Motion dismissing the SAC with leave to amend, in order to provide the Plaintiffs with an opportunity to set forth the specific bases for monetary damages under state law such that the litigation can proceed.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Pro Se
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Douglas Edward Goodman Represented By Edward T Weber
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Anne Louise Goodman Represented By
11:00 AM
Edward T Weber
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 91
08/02/18
Debtor moves to vacate dismissal of the case due to the mistake of counsel in not calendaring the hearing on the Motion to Dismiss of the Trustee. The Trustee recommends conditional approval of the Motion if Counsel can certify to the Court at the hearing that she is holding $15,240. Additionally, the Trustee requires that no later than July 5, 2018, the Debtor must submit copies of the 2017 federal and state tax returns and any refunds to the Trustee.
The Court is inclined to GRANT the Motion on Trustee’s conditions.
APPEARANCES REQUIRED.
Debtor(s):
Marquis Vincent Campbell Represented By Eliza Ghanooni
Movant(s):
Marquis Vincent Campbell Represented By Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni Eliza Ghanooni
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Movant(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 38
08/02/18
Debtors move to vacate dismissal of the case due to the Debtors’ alleged pneumonia which temporarily incapacitated them. The Trustee recommends conditional approval of the Motion if Counsel can certify to the Court at the hearing that she is holding
$1,613. Additionally, the Trustee requires that no later than July 15, 2018, the Debtors must submit copies of the 2017 federal and state tax returns and any refunds to the Trustee.
The Court is inclined to GRANT the Motion on Trustee’s conditions.
APPEARANCES REQUIRED.
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
Movant(s):
Richard Ortiz Represented By
11:00 AM
Elena Steers
Dolores Ortiz Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01127 Tarhuni v. Lakeview Loan Servicing, LLC et al
Also #12 EH
Docket 4
On March 29, 2018, Melanie Tarhuni ("Debtor") filed her petition for chapter 13 relief. On June 1, 2018, the Debtor (in pro per) filed the instant adversary proceeding against Lakeview Loan Servicing, LLC, FNF Servicing dba Loancare, LLC, Les Zieve, John Steele, Janaya Carter, and Zieve, Brodnax & Steele, LLP, a limited liability partnership ("Defendants").
The Debtor’s bankruptcy case was dismissed on June 7, 2018, at the hearing on confirmation. On July 5, 2017, LoanCare, LLC and Lakeview Loan Servicing, LLC filed a Motion to Dismiss the Complaint ("Motion"). The Debtor filed her Opposition to the Motion on July 19, 2018. On July 26, 2018, LoanCare and Lakeview filed their reply.
11:00 AM
The dismissal of a bankruptcy case has several ramifications as set out in
Bankruptcy Code Section 349. The Ninth Circuit has explained, "Section 349 of the Bankruptcy Code lists the various effects of dismissal of the underlying bankruptcy case; conspicuously absent from that list is automatic termination of jurisdiction of related cases." In re Carraher, 971 F.2d 327, 328 (9th Cir. 1992). The bankruptcy court may retain jurisdiction over a related proceeding subject to considerations of judicial economy, fairness, convenience and comity. In re Casamont Inv'rs, Ltd., 196 B.R. 517, 522 (9th Cir. BAP 1996).
Here, the Debtor’s underlying bankruptcy case was dismissed shortly after the initial filing. The instant adversary proceeding has been pending for two months during which no significant actions have been taken to advance the litigation. Given that the claims of the Debtor relate primarily to a determination of the lien rights of the Defendants under state law and to claims made pursuant to the FDCPA, which may be brought in the District Court and over which this Court cannot make final rulings pursuant to Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011), the Court has determined that the principles of judicial economy, fairness, convenience and comity do not favor this Court’s retention of jurisdiction over the action.
As an alternative grounds for dismissal, the Court incorporates the findings related to jurisdiction into the Opposition’s analysis regarding abstention and adopts the Opposition’s analysis. The Court finds that abstention is appropriate in this case.
For the foregoing reasons, the Court is inclined to GRANT the Motion dismissing the instant adversary proceeding.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing, LLC Represented By Jonathan C Cahill
FNF Servicing Inc Pro Se
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs
Janaya Carter Represented By
Jennifer Needs
LoanCare, LLC Represented By Jonathan C Cahill
Zieve, Brodnax & Steele, LLP Represented By Jennifer Needs
Movant(s):
Lakeview Loan Servicing, LLC Represented By Jonathan C Cahill
LoanCare, LLC Represented By Jonathan C Cahill
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01127 Tarhuni v. Lakeview Loan Servicing, LLC et al
Also #11 EH
Docket 1
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing, LLC Represented By Jonathan C Cahill
FNF Servicing Inc Pro Se
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs
Janaya Carter Represented By
Jennifer Needs
LoanCare, LLC Represented By Jonathan C Cahill
11:00 AM
Zieve, Brodnax & Steele, LLP Represented By Jennifer Needs
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #14 EH
Docket 30
Summary of the Motion:
Resolutions/GreenPoint Mortgage Funding, Inc. (Payoff Statement 4/20/18)
TENTATIVE
GRANT upon receipt of a chapter 13 discharge.
APPEARANCE IS WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued to the next Chapter 13 calendar.
PREVAILING PARTY SHOULD SUBMIT THE FORM ORDER WITHIN 7 DAYS, A BLANK COPY OF WHICH MAY BE DOWNLOADED FROM THE JUDGE’S FORMS SECTION ON THE COURT’S WEBSITE.
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
11:00 AM
Movant(s):
Michelle Cadena Quinn Represented By Steven A Alpert Steven A Alpert Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 8
08/02/18
BACKGROUND
On June 18, 2018 ("Petition Date"), Fatana Aziz (the "Debtor") filed a petition for chapter 13 relief.
On July 3, 2018, the Office of the United States Trustee ("UST") filed a Motion to Dismiss Chapter 13 Case with a Re-Filing Bar (the "Motion"). No opposition has been filed.
DISCUSSION
Section 1307(c) provides that after notice and a hearing, "the court may convert a case under [Chapter 13] to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause." 11 U.S.C. § 1307. "Section 1307(c) enumerates eleven non- exclusive grounds which may constitute ‘cause’ for dismissal." In re Ellsworth, 455
B.R. 904, 914 (9th Cir. BAP 2011). Although not specifically enumerated, "bad faith" may constitute "cause." Id. In determining whether a Chapter 13 petition has been filed in bad faith, a bankruptcy court should review the "totality of the circumstances." In re Eisen, 14 F.3d 469, 470 (9th Cir. 1994). In reviewing the totality of the circumstances, a court should consider:
whether the debtor misrepresented facts in his or her petition or plan, unfairly
manipulated the Bankruptcy Code or otherwise filed the Chapter 13 petition or plan in an
inequitable manner;
11:00 AM
the debtor’s history of filings and dismissals;
whether the debtor’s only purpose in filing for chapter 13 protection is to defeat state
court litigation; and
whether egregious behavior is present.
In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. 1999).
Here, the UST asserts as grounds for dismissal that the Debtor has filed three cases since 2016 (Case No. 16-20907, Case No. 17-17926, Case No. 18-15098). Two of the Debtor’s prior cases were dismissed for failure to file information and the instant case was filed as incomplete with the balance of schedules due on July 2, 2018. As of the date of the filing of the Motion, the Debtor had not filed the missing schedules. Additionally, in the current case, the Debtor listed one creditor, Wells Fargo, which indicates that the sole reason for the filing is to frustrate Wells Fargo Bank.
Here, for the reasons set forth by the UST, based primarily on the history of filings, and the repeated conduct of the Debtor in failing to comply with Court- imposed deadlines, the Court finds that cause exists to dismiss the Debtor’s case. Additionally, the Debtors apparent attempts to file bankruptcy for the sole purpose of forestalling creditors warrants a one-year bar under the Court’s § 105 and § 349 authority as requested by the UST.
TENTATIVE RULING
Based on the foregoing, including the Debtor’s failure to file opposition which this Court deems as consent to the granting of the Motion under LBR 9013-1(h), the Court is inclined to GRANT the Motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Fatana Aziz Pro Se
11:00 AM
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 48
On April 20, 2018, Ridge Robert ("Debtor") filed his petition for chapter 13 relief. Among the assets of the estate is a 2013 Toyota Camry (the "Camry"). On July 3, 2018, the Debtor filed his Motion to Value the Camry ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtor asserts that the Camry’s value, and thus its secured portion, should be determined to be $6,600, with an unsecured deficiency claim for $2,366. In support the Debtor has attached a copy of the Kelly Blue Book. However, the copy of the Kelly Blue Book printout attached to the Motion does not indicate pertinent facts of the Camry such as the make and model of the vehicle necessary to corroborate the Debtor’s assertion of value.
11:00 AM
Finally, as to service, Wells Fargo was not properly served via FRBP 7004 to the attention of an officer and was also not served at the PO Box requested for bankruptcy-related notices on its proof of claim.
TENTATIVE RULING
The Court is inclined to CONTINUE the Motion for a hearing on August 30, 2018, at 11:00 a.m. for Debtor to provide supplemental documentation to corroborate the assertion of value as set forth above and for the Debtor to re-serve the Motion and supplemental documentation on Wells Fargo as indicated above. The deadline to file and serve the supplemental documents is August 9, 2018.
APPEARANCES WAIVED. Movant to file and serve notice of the continuance, a copy of the Motion, and supplemental documentation per the Court’s instructions.
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Movant(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #18 EH
Docket 0
- NONE LISTED -
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
JUANITA M ROMERO Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #22 EH
Docket 0
- NONE LISTED -
Debtor(s):
Marco Tulio Magana Represented By Daniel King
Joint Debtor(s):
Gloria Louisa Magana Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #21 EH
Docket 0
- NONE LISTED -
Debtor(s):
Marco Tulio Magana Represented By Daniel King
Joint Debtor(s):
Gloria Louisa Magana Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Elizabeth Lucas Represented By Steven A Wolvek
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Charles Anthony Anunciation Represented By Jeffrey B Smith
Joint Debtor(s):
Lisa Rhea Anunciation Represented By Jeffrey B Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Vadany Sophan Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
John Forest Harmon Jr. Represented By David Lozano
Joint Debtor(s):
Margaret Anne Vieyra-Harmon Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Susan Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Adam Casey Addison Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose M. Cortez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lori Johnston Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Carlos Villegas Pro Se
Joint Debtor(s):
Maria Guadalupe Villegas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gary Ray Osborn Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Jose Gutierrez Represented By
M Wayne Tucker
Joint Debtor(s):
Diane Gutierrez Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norma Hermosillo Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Morales Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 14
On May 31, 2018, Gabriel and Jeneke Blanco (collectively, "Debtors") filed their petition for chapter 13 relief. Among the assets of the estate is a 2012 Honda Accord (the "Accord"). On June 15, 2018, the Debtors filed their Motion to Value the Accord ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the Accord’s value, and thus its secured portion, should be determined to be $8,331, with an unsecured deficiency claim for $9,285.31. In support the Debtor asserts that he consulted the Kelly Blue Book Report. However, a copy of the Kelly Blue Book report was not attached. Nor did the Debtors attach a certificate of title indicating the identity of the lienholder or a statement regarding the balance owed.
11:00 AM
Despite these issues, the Court notes that Proof of Claim 6-1 with respect to
the Accord confirms that the Claimant agrees that the value of the Accord is $8,331. Thus, as the Court finds no dispute regarding the value of the collateral, the secured portion of the claim as determined to be $8,331. Moreover, based on Claim 6-1, the unsecured deficiency claim is $8,424.11.
TENTATIVE RULING
For the foregoing reasons, the Court is inclined to GRANT the Motion as set forth above.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 15
On May 31, 2018, Gabriel and Jeneke Blanco (collectively, "Debtors") filed their petition for chapter 13 relief. Among the assets of the estate is a 2015 Heartland North Trail Caliber Series M-33BKSS (the "RV"). On June 15, 2018, the Debtors filed their Motion to Value the RV ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the RV’s value, and thus its secured portion, should be determined to be $24,575, with an unsecured deficiency claim for $5,047.70. In support the Debtor asserts that he consulted the NADA Guide. However, a copy of the NADA Guide report was not attached. Nor did the Debtors attach a Certificate of Title indicating the identity of the lienholder or a statement regarding the balance owed.
11:00 AM
As Claimant, Bank of the West, filed Proof of Claim No. 8-1, the Court can
overcome the necessity of a Certificate of Title or statement regarding the balance owed. However, to meet their evidentiary burden, the Debtors must provide admissible evidence of the NADA guide report they consulted to determine the value of the RV.
TENTATIVE RULING
For the foregoing reasons, the Court is inclined to CONTINUE the Motion for Debtors to file and serve a supplemental Debtor declaration providing evidence of the NADA guide report consulted to establish fair market value.
APPEARANCES REQUIRED.
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #39 - #40
EH
Docket 0
- NONE LISTED -
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Caraveo Jr. Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cassandra Henderson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Moises Cortez Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 92
- NONE LISTED -
Debtor(s):
David Sandoval Represented By
Bryant C MacDonald
Joint Debtor(s):
Mary Celine Sandoval Represented By
Bryant C MacDonald
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 210
- NONE LISTED -
Debtor(s):
Taylor J. Bretz Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 124
- NONE LISTED -
Debtor(s):
Robert A Ausler Represented By James T Lillard
Joint Debtor(s):
Marie A Galloway Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Gilbert Alfred Torrez Sr. Represented By
Rabin J Pournazarian
Joint Debtor(s):
Emily Torrez Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 168
- NONE LISTED -
Debtor(s):
Steven Lee Gardner Represented By Dana Travis
Joint Debtor(s):
Jennifer Ann Gardner Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Janel M Faulks Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 113
- NONE LISTED -
Debtor(s):
Tanyua A Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 154
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 104
- NONE LISTED -
Debtor(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 86
- NONE LISTED -
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 79
- NONE LISTED -
Debtor(s):
Gene Ashley Heisser Jr. Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Octavio Rubio Mata Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Idalia Temblador-Baisa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 96
- NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
- NONE LISTED -
Debtor(s):
Jose Alberto Lara-Pena Represented By Luis G Torres
Joint Debtor(s):
Yanisleidy Sanchez-Quinonez Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Fernando Ramos Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 62
- NONE LISTED -
Debtor(s):
Susan Violet Guillot Represented By Dana Travis
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 70
- NONE LISTED -
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Hector Rene Flores Jr. Represented By Kevin Tang
Joint Debtor(s):
Mayra Cecilia Canchola Vasquez Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Gilberto Linares Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Manuel Garcia Marquez Represented By Christopher Hewitt
Joint Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
Also #71 EH
Docket 19
- NONE LISTED -
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
Plaintiff(s):
Beatriz M Gutierrez Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
From: 5/3/18 Also #70
EH
Docket 1
- NONE LISTED -
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
Plaintiff(s):
Beatriz M Gutierrez Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
1:00 PM
MOVANT: SHEIKH AZEEM AKHTAR
CASE DISMISSED 8/7/18
EH
Docket 8
- NONE LISTED -
Debtor(s):
Sheikh Azeem Akhtar Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 23
On July 12, 2018, the Chapter 7 Trustee filed its Motion to Approve Compromise Under Rule 9019 [Dkt. No. 23]. On August 2, 2018, the Court issued an order [Dkt. No. 26], setting the matter for hearing, and requiring Trustee to submit a supplemental declaration containing evidence of the value of the property sufficient to allow the Court to properly evaluate the motion.
On August 8, 2018, Trustee filed a supplemental declaration [Dkt. No. 30]. The Court having reviewing the contents of the motion and the supplemental declaration, notice being proper and no opposition having been filed, the Court finds that the compromise has satisfied the A&C Property factors. Therefore, the Court is inclined to GRANT the motion.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Trustee(s):
Larry D Simons (TR) Represented By
1:00 PM
Frank X Ruggier
1:00 PM
From: 7/24/18 Also #4 & #5 EH
Docket 328
On December 1, 2017, Auto Strap Transport, LLC ("Debtor") filed a Chapter 11 voluntary petition. On March 6, 2018, a chief restructuring officer, Stephen Douglass (the "CRO"), was appointed on an interim basis, and, on April 11, 2018, appointed on a final basis. Now, relying on the estimates of the CRO, Debtor believes it will be at least six months before Debtor can become profitable, and, therefore, "Debtor has determined the best option for its creditors is to sell its assets." [Dkt. No. 328, pg. 8, lines 24-26]. On June 26, 2018, Debtor filed a motion to sell substantially all assets of Debtor free and clear of liens (the "Motion").
The basic terms of the Motion are the following: Debtor proposes to sell to Nations Fund I, LLC ("Nations"), Debtor’s largest secured creditor, all of Debtor’s assets which are not subject to purchase money security interests or leases with creditors other than Nations (the "Assets").1 The Motion contemplates Nations purchasing the Assets for the amount of $3,200,000, of which $2,950,000 is a credit bid, and
$250,000 in a cash payment to be predominantly used for payment of administrative
1:00 PM
claims. Debtor estimates that the Assets have a fair market value of $3,160,000.
11 U.S.C. § 363(b)(1) provides that Debtor may use, sell, or lease property of the estate outside of the ordinary course of business after notice and a hearing. The Court notes the following non-exclusive issues with the current version of the Motion:
Notice
FED. R. BANKR. P. Rule 6004(a) provides: "Notice of a proposed use, sale, or lease of property, than cash collateral, not in the ordinary course of business shall be given pursuant to Rule 2002(a)(2), (c)(1), (i), and (k) and, if applicable, in accordance with § 363(b)(2) of the Code." FED. R. BANKR. P. Rule 2002(a)(2) requires the Motion to be served on all creditors, which does not appear to have been done here. Specifically, the Court notes that the petition in the instant case identifies 111 parties to receive notice, however, the Motion appears to have been served on substantially less than half that many entities.
Fair Market Value and Marketing
Local Rule 6004-(1)(c)(2)(A) provides that the Motion "must be supported by a declaration of the movant establishing the value of the property and that the terms and conditions of the proposed sale, including the price and all contingencies, are in the best interest of the estate." While the Motion does include a declaration of Debtor’s principal establishing a fair market value of $3.16 million, the Motion does not include any breakdown of that valuation or the comparables upon which the valuation was based. Additionally, the old adage that "value is what someone is willing to pay" is pertinent here. Section III.G of the Motion suggests that the marketing effort was possibly inadequate, and tardy at best. Specifically, the future tense verbiag of the section indicates that Debtor did not engage in any marketing prior to filing the motion. Debtor also stated it would file a supplement seven days before the sale
1:00 PM
hearing, however, such supplement was only filed the morning before the hearing, depriving the Court of ample time to review the submitted evidence. Additionally, Debtor did not submit the "due diligence package" it allegedly used in marketing. Finally, the late supplement filed indicates in paragraph 14 that a potential buyer has not yet rendered a decision on whether to overbid. Ultimately, in light of the evidence presented to the Court, the Court is unable to conclude that the rushed marketing effort is inadequate in light of the unusual and complex nature of the sale under consideration.
Miscellaneous Issues
-The Motion states that "Debtor is reviewing the tax consequences to the bankruptcy estate as a result of the proposed sale. Debtor will update the Court at the hearing as to the tax consequences, if any." [Dkt. No. 328, pg. 12, lines 4-5]. The Court intends to require that the estimation of tax consequences be included in the amended motion.
-The Motion fails to provide a breakdown of administrative, priority, and unsecured claims and the possible distribution to each class. At this stage of the case, and given the case’s trajectory, it seems Debtor should possess a reasonably accurate estimate of the administrative claims in this case which would allow priority and unsecured creditors to determine the amount of any potential distribution, if any. Currently, the Motion’s treatment of the distribution of the sales proceeds is vague; the Motion also confusingly refers to Nation’s retaining a security interest in the cash component of the purchase amount, for reasons that are very unclear.
APPEARANCES REQUIRED.
1:00 PM
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
1:00 PM
From: 7/24/18 Also #3 & #5 EH
Docket 354
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
1:00 PM
From: 1/9/18, 4/10/18, 7/10/18, 7/24/18 Also #3 & #4
EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/20/17, 2/7/18, 3/7/18 EH
Docket 1
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
8/1/2018 11:20:43 AM Page 1 of 1
12:30 PM
Also #2 - #5 EH
Docket 10
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
12:30 PM
Also #1 - #5 EH
Docket 9
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
12:30 PM
Also #1 - #5 EH
Docket 11
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
12:30 PM
Also #1 - #5 EH
Docket 12
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
12:30 PM
Also #1 - #4 EH
Docket 7
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
10:00 AM
MOVANT: PAUL SHELDON KIRKWOOD
EH
Docket 11
The Court having review Debtor’s motion, and finding that the presumption of bad faith under 11 U.S.C. § 362(c)(3)(C) does not arise in this case, and there being no opposition to the motion under consideration, the Court is inclined to GRANT the motion and CONTINUE the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Paul Sheldon Kirkwood Represented By Michael E Clark
Movant(s):
Paul Sheldon Kirkwood Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ERIBERTO SANDOVAL
EH
Docket 14
The Court having review Debtor’s motion to continue the automatic stay, and finding sufficient cause to rebut the presumption of bad faith imposed by 11 U.S.C. § 362(c) (3)(C), the Court is inclined to GRANT the motion and CONTINUE the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Movant(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Michael Ray Augusta Represented By Dana Travis
Joint Debtor(s):
Irma Jean Augusta Represented By Dana Travis
Movant(s):
MECHANICS BANK, a California Represented By
10:00 AM
Trustee(s):
Vincent V Frounjian
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: BMO HARRIS BANK NA
EH
Docket 14
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Joint Debtor(s):
Anabely E Vargas Represented By Todd L Turoci
Movant(s):
BMO HARRIS BANK N.A. Represented By
Raffi Khatchadourian
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Santiago Hernandez Represented By Luis Aguilar
Joint Debtor(s):
Maria J Garcia Hernandez Represented By Luis Aguilar
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE
Also #7 EH
Docket 40
- NONE LISTED -
Debtor(s):
Adonis Francisco Pro Se
Movant(s):
Deutsche Bank Trust Company Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CU MEMBERS MORTGAGE
Also #6 EH
Docket 42
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request for relief pursuant to § 362(d)(4), based on unauthorized transfers of interest. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under
¶¶ 2 and 3.
APPEARANCES REQUIRED.
Debtor(s):
Adonis Francisco Pro Se
Movant(s):
CU Members Mortgage Represented By Edward A. Treder Darlene C Vigil
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALLY FINANCIAL INC
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shelly Lynn Agnoletto Represented By Daniel King
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Mourence Eugene Burris Represented By Carey C Pickford
Movant(s):
Freedom Mortgage Corporation Represented By Nancy L Lee
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: MORTGAGE SOLUTIONS OF COLORADO LLC
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 13.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Kevin DeShawn Fowler Represented By Stephen D Brittain
Movant(s):
Mortgage Solutions of Colorado, Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 23
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from § 1301(a) stay because this is a Chapter 7 proceeding and, therefore, that section is inapplicable. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jose Luis B. Guerrero Represented By Gary S Saunders
Movant(s):
Wilmington Savings Fund Society, Represented By
Kristin A Zilberstein
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: CAB WEST LLC
EH
Docket 17
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Jason Ortega Represented By
Todd L Turoci
Joint Debtor(s):
Sally Michelle Ortega Represented By Todd L Turoci
Movant(s):
Cab West LLC Represented By Sheryl K Ith
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA NA
EH
Docket 22
- NONE LISTED -
Debtor(s):
Hector Comparan Sarabia Pro Se
Movant(s):
Bank of America, N.A. Represented By
Diana Torres-Brito
Trustee(s):
Robert Whitmore (TR) Represented By Cathy Ta
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
Docket 24
Service is Proper Opposition: Yes
APPEARANCES REQUIRED.
Debtor(s):
Jennifer A. Lawton Represented By Steven E Cowen
Movant(s):
PennyMac Loan Services, LLC Represented By Kelsey X Luu Jamie D Hanawalt
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL SERVICE VEHICLE TRUST
EH
Docket 30
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Ruby Lee Frazier Represented By Michael R Totaro
Movant(s):
Financial Services Vehicle Trust Represented By
Cheryl A Skigin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK, N.A.
EH
Docket 26
- NONE LISTED -
Debtor(s):
Gonzalo Aguilar Pro Se
Joint Debtor(s):
Diane Vick Pro Se
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Nancy L Lee
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL PARTNERS CREDIT UNION
From: 7/24/18 EH
Docket 31
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES INC
EH
Docket 27
- NONE LISTED -
Debtor(s):
Amanuel Montrell Bradberry Represented By Gary S Saunders
Joint Debtor(s):
Katrina Lashall Bradberry Represented By Gary S Saunders
Movant(s):
Consumer Portfolio Services, Inc. Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC dba GM FINANCIAL
EH
Docket 32
- NONE LISTED -
Debtor(s):
Gilbert D Olivares Represented By Scott Kosner
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC dba MR COOPER
EH
Docket 29
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (4). GRANT waiver of Rule 4001(a)(3) stay. DENY request for relief from § 1301(a) stay because this is a Chapter 7 proceeding. GRANT requests under ¶¶ 2, 3 and 10. DENY requests under ¶¶ 8 and 11 for lack of cause shown. DENY request under ¶ 14 because it does not request any relief.
APPEARANCES REQUIRED.
Debtor(s):
Alexander Joo Pro Se
Movant(s):
The Bank of New York Mellon Represented By Nancy L Lee
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK NATIONAL ASSOC AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORP, MORTGAGE PASS-THROUGH
EH
Docket 29
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. DENY request for relief from § 1301(a) stay as moot because this case has been converted to Chapter 7. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
David H Yopp Represented By Julie J Villalobos
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Jamie D Hanawalt
10:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 49
- NONE LISTED -
Debtor(s):
Anna C. Hopson Represented By Julie J Villalobos
Joint Debtor(s):
George E. Hopson Represented By Julie J Villalobos
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: REO PROPERTIES GROUP, INC.; ALLCITY REAL ESTATE INC.
EH
Docket 62
Service is Proper Opposition: None
The Court notes that the subject real property was abandoned by Trustee pursuant to the "Notice of Proposed Abandonment of Property of the Estate" [Dkt. No. 32]. The Court notes that the motion requests confirmation that no stay is in effect.
11 U.S.C. § 362(a) outlines the scope of the automatic stay. The eight enumerated categories of actions stayed fall into two categories: (1) actions against property of the estate; (2) and actions to enforce a prepetition interest or collect on a prepetition claim. Notably, the automatic stay does not bar the enforcement of a postpetition interest or claim when such enforcement action does not involve property of the bankruptcy estate.
Here, the real property at issue was abandoned by Trustee and is, therefore, not property of the bankruptcy estate. Movant is the purchaser of the real property at a postpetition Trustee’s sale and, therefore, Movant’s interest in the real property did not arise prepetition and could not have been enforced prepetition. As a result, none of the categories of stayed acts outlined in § 362(a) are applicable to this situation.
Pursuant to the above, the Court is inclined to GRANT the request in ¶ 3 and confirm that the automatic stay was never in effect with regard to Movant and the subject
10:00 AM
matter of the motion. All other requests in the motion are DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Beatrice A Diaz Pro Se
Movant(s):
REO PROPERTIES GROUP, INC.; Represented By
Stephen C Duringer
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
10:00 AM
MOVANT: SETERUS, INC
EH
Docket 30
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shane Morgan Represented By Christopher Hewitt
Movant(s):
Seterus, Inc. as the authorized Represented By James F Lewin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 28
- NONE LISTED -
Debtor(s):
Kingpouangphet Sangasy Represented By James T Lillard
Joint Debtor(s):
Keooudone Phrakousonh Represented By James T Lillard
Movant(s):
WELLS FARGO BANK, N.A. Represented By John Chandler Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY
EH
Docket 127
- NONE LISTED -
Debtor(s):
William A. Mendez II Represented By Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith Jennifer H Wang
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith Carmela Pagay
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Eugene Alexis Padilla Represented By John F Brady
Movant(s):
Freedom Mortgage Corporation, its Represented By
Kristin A Zilberstein Merdaud Jafarnia Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALLY FINANCIAL INC
EH
Docket 65
- NONE LISTED -
Debtor(s):
Richard M. Orellano II Represented By Patricia M Ashcraft
Joint Debtor(s):
Tifany Orellano Represented By Patricia M Ashcraft
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 86
- NONE LISTED -
Debtor(s):
Edward A. Moore Jr. Represented By Paul Y Lee
Joint Debtor(s):
Carole Moore Represented By Paul Y Lee
Movant(s):
U.S. BANK NATIONAL Represented By DeMarcus Jones Kelsey X Luu
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 6/5/18, 7/10/18 EH
Docket 66
APPEARANCES REQUIRED.
Debtor(s):
Valicia LaShawn Fennell Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
From: 5/15/18, 6/26/18, 8/1/18 EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Yelena Gurevich
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt Jessica L Carter
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 4/24/18, 6/5/18, 7/24/18 EH
Docket 41
Hearing Date: 4/24/18 Service: Proper Opposition: Yes
On March 29, 2018, Debtor filed a Motion for Authority to Sell the Property. Debtor has indicated that he intends to pay off the Movant and remainder of the chapter 13 plan through escrow. The Trustee has recommended approval of the sale. The Court is inclined to CONTINUE the matter for 30 days for Debtor to finalize sale.
APPEARANCES REQUIRED.
Debtor(s):
Delkys Hyde Represented By
David L Nelson
Movant(s):
Bank of America, N.A. Represented By Bonni S Mantovani
S Renee Sawyer Blume Alexander G Meissner
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MIDFIRST BANK
EH
Docket 50
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Omar Edwin Rivera Represented By Rhonda Walker
Movant(s):
MidFirst Bank Represented By Mary Jane Sarne
Joseph C Delmotte Kelsey X Luu Nancy L Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
From: 6/20/18, 7/24/18 EH
Docket 53
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Donald Ray Eskridge Represented By Paul Y Lee
Movant(s):
PennyMac Loan Services, LLC Represented By John D Schlotter
Karrollanne K Cayce Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 114
NONE LISTED -
Debtor(s):
Michael Lee Barnes Represented By Todd L Turoci
Joint Debtor(s):
Belinda Ann Barnes Represented By Todd L Turoci
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Leslie M Klott Sheereen Middleton Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MTGLQ INVESTORS LP
From: 7/24/18 EH
Docket 200
Service: Proper Opposition: Yes
Debtor’s confirmed plan provided for Debtor to surrender his interest in the real property at issue, and the plan does not treat Movant’s claim. Therefore, as to Debtor, Movant has established cause for relief from the automatic stay.
As to Movant’s request for relief from the co-debtor stay, the Court notes that the co- debtor at issue here, Debtor’s former spouse, appears to have been served with the motion and failed to file opposition, which the Court can deem consent to the relief requested pursuant to Local Rule 9013-(1)(h). More importantly, 11 U.S.C. §1301(c)
provides that the Court must grant relief from the co-debtor stay if "the plan filed by the debtor proposes not to pay such claim." Therefore, relief from the co-debtor stay is appropriate.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Movant(s):
MTGLQ Investors, LP Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
(2) Requiring Status Report EH
Docket 7
NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
From: 5/8/18 EH
Docket 18
NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
MOVANT: WELLS FARGO BANK, N.A.
From: 7/24/18 EH
Docket 71
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶ 2,3, and 12.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
2:00 PM
From: 12/13/16, 3/7/17, 5/30/17, 7/25/17, 9/26/17, 10/31/17, 11/7/17, 5/15/18
EH
Docket 8
NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
2:00 PM
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
From: 7/10/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01111 David M. Goodrich, Chapter 11 Trustee v. American Express Company, a
#43.00 Status Conference RE: 3rd Party Complaint [4] Answer to Complaint and Affirmative Defenses to Plaintiff's Complaint, and Third-Party Claim Against John C. Larson, Third-Party Complaint by American Express Company, a New York Corporation dba American Express, American Express Travel Related Services, Inc., a New York corporation dba American Express against John C. Larson
EH
Docket 4
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
American Express Company, a New Pro Se American Express Travel Related Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
2:00 PM
Adv#: 6:18-01111 David M. Goodrich, Chapter 11 Trustee v. American Express Company, a
From: 7/10/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
American Express Company, a New Pro Se American Express Travel Related Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01112 David M. Goodrich, Chapter 11 Trustee v. Source Medical Billing &
From: 7/10/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Source Medical Billing & Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn
2:00 PM
Steven Werth
2:00 PM
Adv#: 6:18-01113 David M. Goodrich, Chapter 11 Trustee v. Netreva, Inc., a California
From: 7/10/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Netreva, Inc., a California Represented By Lazaro E Fernandez
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
EH
Docket 78
PROCEDURAL BACKGROUND
On January 26, 2018, Markus Boyd ("Debtor") filed a Chapter 11 voluntary petition. On February 13, 2018, the Court entered an interim order approving use of cash collateral. On March 6, 2018, the Court entered orders (1) authorizing Debtor to provide adequate assurance of payment to utility service providers and; (2) approving a budget. On March 26, 2018, the Court authorized the employment of Nicholas Gebelt as counsel for Debtor. On April 26, 2018, the Court disallowed four claims of American Express (claim numbers 2 and 4-6).
On June 22, 2018, Debtor filed its disclosure statement and Chapter 11 plan. On August 7, 2018, UST filed a limited objection to Debtor’s disclosure statement.
DISCLOSURE STATEMENT
In addition to the disclosure statement, the following exhibits are included: (1)
2:00 PM
"Treatment of Claims/Interests" (Exhibit A); (2) "Executory Contracts & Unexpired Leases" (Exhibit B); (3) "Cash Flow Projections" (Exhibit C); (4) "Recent Financial History" (Exhibit D); (5) "Secured Claims" (Exhibit E); (6) "General Unsecured Claims, in Class 4A or 4B" (Exhibit F); "Liquidating Analysis" (Exhibit G); "Endnotes/Continuation Sheets" (which includes a supplement) (Exhibit H). Debtor has used the Court’s optional disclosure statement form and worksheets, and, therefore, the format of the disclosure statement is adequate.
The Chapter 11 Plan’s proposed effective date is October 21, 2018. There are four classes of claims and four listed categories of unclassified claims1:
Class 1: Arrears secured by real property -- $174,971.67 claim, Debtor proposes to pay over 60 months. Debtor’s Exhibit A contains a row for arrears on the second and third deeds of trust, but does not identify any amount owing.
Class 2: Additional claims secured by real property – Debtor lists three different claims within this class. Debtor proposes to continue paying his mortgage (identified as $772,733.45)2, over 230 months and at 2% interest. Debtor proposes to cure his delinquency on HOA dues over 60 months. Debtor has included a row for, presumably, future HOA dues but no amount is listed. Nor is it clear that this class is truly unimpaired.
Class 3: Priority claims: Debtor’s plan does not list any claims in class 3
Class 4: General Unsecured – $45,151.20, Debtor proposes to pay over 60 months.
Type 1: UST fees ($650) – paid in full on effective date
Type 2: Taxes (IRS) – approximately $80k, paid over 51 months
Type 3: Taxes (FTB) –$5,651.86, paid over 51 months
Type 4: Nicholas Gebelt’s fees ($30k)—paid in full on effective date
2:00 PM
Type 5: Accountant’s fees – none listed
LEGAL ANALYSIS
A. Adequate Information
A Chapter 11 disclosure statement is required to contain "adequate information" pursuant to 11 U.S.C. § 1125(b). Section 1125(f)(2) provides that: "the court may approve a disclosure statement submitted on standard forms approved by the court or adopted under section 2075 of title 28." The Central District of California has devised a disclosure statement template, Form 3017-1.CH11.DISCLSR.STMT, which Debtor generally adopted as to format.
As to the substance of a disclosure statement, 11 U.S.C. § 1125(a)(1) defines "adequate information" as:
information of a kind, and in sufficient detail as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records, including a discussion of the potential material Federal tax consequences of the plan to the debtor, any successor to the debtor, and a hypothetical investor typical of the holders of claims or interests in the case, that would enable such a hypothetical investor of the relevant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information
2:00 PM
The type of information required varies with the circumstances. See, e.g., In re Jeppson, 66 B.R. 269, 292 (Bankr. D. Utah 1986) (listing nineteen categories of information commonly required); see also In re Malek, 35 B.R. 443, 443-44 (Bankr.
E.D. Mich. 1983) (listing minimum requirements).
While Debtor has utilized Court approved forms and has clearly delineated the treatment of the varying claims, the disclosure statement simply lacks the information necessary to evaluate Debtor’s financial situation and determine the probability of the plan’s success. First of all, as noted by UST, Debtor’s practice appears to have been not to withhold taxes on earned income. Second of all, the limited financial information provided by Debtor indicates his income fluctuates drastically. The four months of "recent financial history" (Exhibit D) including in the disclosure statement note the following monthly receipts:
1) $4,559 (February) (the corresponding monthly operating report lists receipts of
$51.89)
2) $32,591 (March)
3) $15,541 (April)
4) $35,626 (May)
Additionally, a monthly operating report for June, filed after the disclosure statement, identifies receipts in the amount of $1,801.11. The limited financial history provided supports UST’s assertion that: "Debtor’s tax liabilities are a significant risk factor given that the monthly operating reports reflect that the Debtor averages between
$18-$19,000 in monthly net income – much less than the $30,000 reported in the Disclosure Statement’s cash flow projections." Indeed, using that $18-$19,000 figure, if one assumes that the receipts are before tax and that Debtor will ultimately be unsuccessful in the pending adversary proceeding, it would appear that the proposed plan may be infeasible. In any event, the financial information provided in the disclosure statement is grossly inadequate for an evaluation of the prospects of the proposed plan. The information simply does not allow for a reasonably accurate estimation of Debtor’s income and expenses moving forward.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18 Also #47
EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
10:00 AM
From: 7/11/18 EH
Docket 12
- NONE LISTED -
Debtor(s):
Sharon R. Walters Represented By Emilia N McAfee
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Ashley Rico Represented By
Terrence Fantauzzi
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Barbra Kyung Sook Kim Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Kim Michele Schroeder Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Bertha Babcock Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Brianna Lee Phye Represented By Christopher L Hoglin
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #8 EH
Docket 9
- NONE LISTED -
Debtor(s):
Rose Marie Kelly Represented By Daniel King
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #7 EH
Docket 11
- NONE LISTED -
Debtor(s):
Rose Marie Kelly Represented By Daniel King
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 14
- NONE LISTED -
Debtor(s):
Cabrini Haynes Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 70
08/22/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $6,083.61 |
Trustee Expenses: | $425.47 |
Accountant Fees: | $2,890.50 |
Accountant Costs: | $390.30 |
Attorney Fees: | $4,353.50 |
Attorney Costs: | $1,796.34 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Charles David Arthur Represented By Anerio V Altman
11:00 AM
Joint Debtor(s):
Claire Bigornia Blanza Arthur Represented By Anerio V Altman
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Rika Kido
11:00 AM
Docket 33
08/22/2018
No opposition has been filed. Service was Proper.
The Final Report of the Trustee has been set for hearing on sufficient notice. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 362.25 Trustee Expenses: $ 29.40
The Final Report is approved and the trustee may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Daniel J. Clark Represented By Timothy S Huyck
Joint Debtor(s):
Sheryl J. Clark Represented By Timothy S Huyck
11:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Beatrice A Diaz Pro Se
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
11:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Maria E Sanchez Pro Se
Movant(s):
Maria E Sanchez Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 150
- NONE LISTED -
Debtor(s):
Richard C Cox Jr Represented By Summer M Shaw
Movant(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
Trustee(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
11:00 AM
Also #16 - #20
EH
Docket 108
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 10 ("Claim") of Gouvis Engineering Consulting Group, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, which is an entity that is not the Debtor and therefore is not entitled to allowance as a claim. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d
11:00 AM
1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee has pointed to facts tending to defeat the claim by virtue of the fact that Claimant’s own supporting documentation evinces a contractual relationship with Paul Minnick as representative of MCG Development Company, Inc., not on behalf of the Debtor. Absent evidence of a relationship between the Debtor and Claimant, the Claimant has failed to establish the existence of a claim against the Debtor’s estate.
The Court is inclined to SUSTAIN the Objection and DISALLOW Claim No. 10 in
11:00 AM
its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #15 - #20
EH
Docket 98
- NONE LISTED -
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #15 - #20
EH
Docket 100
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 3 ("Claim") of San Bernardino Tax Collector (the "Claimant"). The Trustee’s Objection asserts that the Claim is fully secured and not entitled to a dividend from the Estate.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The supporting documentation indicates that the Claim is secured by vacant land in San Bernardino County. The Trustee requests that the Claim be allowed as fully secured but not entitled to a dividend from the estate. Based on the lack of prejudice to the Claimant and the Claimant’s failure to file response or opposition which this Court deems as consent pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the objection and ALLOW the Claim as a fully secured claim not entitled to a dividend.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
11:00 AM
Movant(s):
Gaurav Datta
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #15 - #20
EH
Docket 102
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 7 ("Claim") of Norman Musselman (the "Claimant"). The Trustee’s Objection asserts that the Claim is fully secured and not entitled to a dividend from the Estate.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Claim indicates that it is secured by a Recorded Deed of Trust and Note and that the fair market value of the Property at issue exceeds the amount of the Claim such that it is fully secured. The Trustee requests that the Claim be allowed as fully secured but not entitled to a dividend from the estate. Based on the lack of prejudice to the Claimant and the Claimant’s failure to file response or opposition which this Court deems as consent pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the objection and ALLOW the Claim as a fully secured claim not entitled to a dividend.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
11:00 AM
Movant(s):
Gaurav Datta
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #15 - #20
EH
Docket 104
- NONE LISTED -
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #15 - #19
EH
Docket 106
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 9 ("Claim") of Erwin L. Seifert (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it regards an employment contract between Claimant and MCG Development. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that
11:00 AM
filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee asserts that the Claim regards an employment contract between Claimant and MCG Development, not the Debtor. However, a separate Agreement dated May 27, 2014, between the Debtor and Claimant appears to indicate that although the employment contract was created between MDG Development and Claimant, the Debtor separately executed a Note and Deed of Trust in favor of Claimant to secure the obligations under the employment agreement in recognition that Claimant’s employment contract with MDG was "for the benefit of Manors …". (Objection at 18).
11:00 AM
Based on the Agreement between Debtor and Claimant, which the Trustee has not addressed, the Court is inclined to OVERRULE the Objection without prejudice on the basis that the Agreement appears to form a basis for enforcement of the Claim against the Debtor’s estate.
APPEARANCES REQUIRED.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Also #22 & #23 EH
Docket 513
Creditor Revere Financial Corporation ("RFC") filed its omnibus objection to Claim No. 1 and 11 of the Franchise Tax Board ("FTB") and to Claim No. 5 and 8 of First Niagara Bank ("FNB") on July 18, 2018 (the "Objection"). A response to the Objection was filed by FTB on August 8, 2018. On August 15, 2018, RFC filed its reply ("Reply"). FNB filed no opposition or response.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby
11:00 AM
giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
As a threshold matter, following the filing of Opposition by the FTB, RFC withdrew its Objection to the claims of the FTB in its Reply. The Objection is thus taken off calendar as to the FTB claims.
As to FNB, RFC has provided evidence to refute that FNB maintains any secured claims related to the real properties located at 1331 East Main Street, in Rochester, NY (the "Main Street Property") or 920 Winton Ave, in Rochester, NY (the "Winton Property") because the Baleine Trustee has sold these properties. FNB, for its part, received proper service and notice of the Objection but failed to respond or otherwise to amend its claim to indicate that following the sale anything remains of its claims. Here, given that RFC has provided evidence that the liens underlying Claims No. 5 and 8 were likely satisfied when the Main Street and Winton Properties were sold, the Court is inclined to SUSTAIN the Objection as to these claims and disallow them in their entirety.
11:00 AM
Based on the foregoing, the Court is inclined to SUSTAIN the Objections of RFC as to FNB, and DISALLOW Claims 5 and 8 of FNB in their entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr Sue-Ann L Tran
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
11:00 AM
Also #21 & #23 EH
Docket 510
08/22/2018
Given the lack of supporting documentation and failure of Home Depot to file opposition or response, which the Court deems as consent to the granting of the relief requested, pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the Objection in its entirety.
APPEARANCES WAIVED.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr Sue-Ann L Tran
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
11:00 AM
Also #21 & #22 EH
Docket 507
Creditor Revere Financial Corporation ("RFC") filed its objection to Claim No. 2 of American Express Bank, FSB ("AMEX") on July 18, 2018 (the "Objection"). A response to the Objection was filed by the Chapter 7 trustee, Larry Simons ("Trustee") on August 8, 2018. On August 15, 2018, RFC filed its reply ("Reply").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
11:00 AM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
AMEX filed Claim No. 2, an unsecured debt totaling $4,768.94, for credit card charges on December 27, 2013. RFC objects to the claim on the following grounds:
There is insufficient supporting evidence to support the claim; and
The claim is likely an avoidable transfer.
RFC requests that pursuant to LBR 3007, the initial hearing be treated as a preliminary status conference to allow the parties with an opportunity to conduct discovery regarding disputed issues/facts.
The Trustee’s Limited Opposition is limited to pointing out the de minimis amount of Claim No. 2 and to request that the Court not permit an extended briefing schedule.
11:00 AM
Here, the Court finds that based on AMEX’s failure to file opposition or
response, which the Court deems as consent to the granting of the relief requested pursuant to LBR 9013-1(h), in addition to the insufficiency of the supporting documentation attached to the Claim, that the Objection should be sustained.
For the forgoing reasons, the Objection is SUSTAINED in its entirety.
APPEARANCES WAIVED.
Debtor(s):
Baleine LP Represented By
Summer M Shaw
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr Sue-Ann L Tran
Trustee(s):
Larry D Simons (TR) Represented By Carmela Pagay Todd A Frealy
11:00 AM
Also #25 EH
Docket 974
Creditor Revere Financial Corporation ("RFC") filed its objection to Claim No. 5 of Frankel & Reichman, LLP ("F&R") on July 18, 2018 (the "Objection"). A response to the Objection was filed by the Douglas Jay Roger ("Debtor") on August 8, 2018 ("Response").
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord
11:00 AM
Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, based on the failure of F&R to file opposition or response which this Court deems as consent to the granting of the relief requested pursuant to LBR 9013-1(h).
For the foregoing reasons, the Objection is SUSTAINED in its entirety.
APPEARANCES WAIVED.
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
11:00 AM
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr Sue-Ann L Tran Jeanne C Wanlass
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
11:00 AM
Also #24 EH
Docket 969
Creditor Revere Financial Corporation ("RFC") filed its omnibus objection on July 18, 2018 to the following claims:
Claim No. 15 of EDD for lack of evidence;
Claim No. 13 of the Franchise Tax Board ("FTB") for lack of evidence;
Claim No. 11-1 and 14 of the IRS for lack of evidence;
Claim No. 21 of Danny Coats as untimely; and
Claim No. 24 of Kajan Mather & Barish APC ("KMB") as untimely.
Responses to the Objection were filed by the Douglas Jay Roger ("Debtor"), the chapter 7 trustee, Helen Frazer ("Trustee"), and the United States of America ("IRS").
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
As a threshold matter, the Court agrees that the claims of Danny Coats and KMB were untimely filed after the February 25, 2014, deadline for filing proofs of claim. Additionally, neither party filed any opposition or response to the Objection. The Court is inclined to SUSTAIN the Objection disallowing Claim No. 21 and Claim
11:00 AM
No. 24 in their entirety. Additionally, as to the IRS, Claim No. 14 has been withdrawn as of August 8, 2018. As to the FTB, the Court agrees with RFC that Claim No. 22 of the FTB supersedes Claim No. 13 and thus pursuant to FRBP 3007(d)(3), Claim No. 13 shall be disallowed in its entirety.
Claim No. 15-1 of the EDD filed by the Debtor has no prima facie validity as it attached no supporting documentation and is silent as to the amount owed and relevant time period covered. Debtor has indicated that it will be withdrawing Claim No. 15 if no response is filed by the EDD. No response has been filed by the EDD.
Finally, as to Claim No. 11 of the IRS, the IRS has filed an amended claim (Claim 11-2) and thus RFC’s objection regarding lack of evidence is moot. In its Reply, RFC requests that the Court stay proceedings on RFC’s Objection to Claim No. 11, require Roger and the IRS to liquidate Claim 11-2 in the tax court, and order the chapter 7 trustee to hold any proposed distributions that the trustee intends to make to the IRS. These requests are not properly before the Court and as such, the Court need not rule on them at this time.
Based on the foregoing, the Court is inclined to SUSTAIN the Objection as to the following claims: Claim No. 21, Claim No. 24, and Claim No. 13. The Objection is OVERRULED as to Claim No. 11 and 14 as moot. Finally, as to Claim No. 15, the Objection is SUSTAINED based on the failure of EDD to file opposition or response which this Court deems as consent pursuant to LBR 9013-1(h) and based on the insufficiency of documentation.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr Sue-Ann L Tran Jeanne C Wanlass
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
11:00 AM
Also #27 & #28 EH
Docket 697
Creditor Revere Financial Corporation ("RFC") filed its omnibus objection on July 18, 2018 to the following claims:
Claim No. 6 of EDD for lack of evidence;
Claim No. 7 of the State Board of Equalization ("SBE") for lack of evidence;
Claim No. 8 of the Franchise Tax Board ("FTB") for lack of evidence; and
Claim No. 13 of Kajan, Mather, and Barish APC ("KMB") as untimely.
Response to the Objection was filed by the Douglas Jay Roger ("Debtor") on August 8, 2018.
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a
party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
As a threshold matter, the Court agrees that the claim of KMB, filed on 09/28/2016, after the July 20, 2015, claims bar date must be disallowed as time barred. The Objection is thus SUSTAINED as to Claim No. 13.
As to the remaining claims of the SBE, FTB, and EDD (collectively, the "Claimants"). The Debtor filed its claims having failed to attach any supporting
11:00 AM
evidence, having failed to specify any amount, and having failed to provide even a relevant time period for amounts incurred. Moreover, as underscored by RFC, the Claimants have had several years to amend and supplement their claims. In its limited opposition to the Objection, the Debtors only evidence to support the claims is an amended IRS claim which purportedly supports an inference that the Debtor must also owe monies to the Claimants. Debtor then asks this Court to continue the hearing for 90 days for resolution of the IRS claim which Debtor insinuates will permit calculation of the Claimants’ claims. However, RFC makes a persuasive argument that Claimants filed no amendments following the IRS’s initial filing of its amended claim on April 17, 2015, and there is no evidence to support a finding that Claimants are likely to supplement their claims now. The Claimants were properly served with the Objection and have remained silent, which the Court deems as consent to the requested relief. Based on the lack of prima facie evidence of validity as to the claims, RFC’s Objection to the legal sufficiency of the claims is well taken and having failed to meet the Claimant’s ultimate burden. As such, the Court is inclined to SUSTAIN the Objection as to Claimants and disallow Claim No.’s 6, 7 and 8 in their entirety.
Based on the foregoing, the Court is inclined to SUSTAIN the Objection in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By
11:00 AM
Trustee(s):
Franklin R Fraley Jr
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Also #26 & #28 EH
Docket 694
Creditor Revere Financial Corporation ("RFC") filed its objection to Claim No. 4 of American Express Bank, FSB ("AMEX") on July 18, 2018 (the "Objection"). A response to the Objection was filed by AMEX on August 6, 2018. AMEX requests that the Court permit AMEX to withdraw its claim or, in the alternative, consents to the Objection being sustained.
The Court is inclined to SUSTAIN the Objection based on AMEX’s consent.
APPEARANCES WAIVED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw
11:00 AM
Movant(s):
Michael S Kogan George Hanover
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Also #26 & #27 EH
Docket 521
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17, 2/14/18, 5/16/18, 6/11/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
2:00 PM
Misty Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01308 Cisneros v. BWI CONSULTING, LLC et al
A. Cisneros against BWI CONSULTING, LLC, Black and White, Inc., BLACK AND WHITE BILLING COMPANY, BLACK AND WHITE INK, MEHRAN DEVELOPMENT CORPORATION. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 1/13/16, 3/23/16, 5/25/16, 7/27/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18, 5/16/18, 6/11/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
MEHRAN DEVELOPMENT Pro Se
2:00 PM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01309 Cisneros v. DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN
A. Cisneros against DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential Transfer (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
DOUGLAS J. ROGER, M.D., INC. Represented By
Summer M Shaw
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 4/25/18, 6/13/18 EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
2:00 PM
Trustee(s):
D Edward Hays
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01199 Revere Financial Corporation v. Bank of Southern California, N.A.
From: 7/11/18 EH
Docket 60
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Bank of Southern California, N.A. Represented By
Kathryn M.S. Catherwood
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:18-01089 Mata et al v. National Collegiate Student Loan Trust 2006-1 et a
Collegiate Student Loan Trust 2007-1. (Charge To Estate) - Filing Fee Not Required. Determination of Discharge Under 11 U.S.C. Sect 523(a)(8) Nature of Suit: 63 - Dischargeability - 523(a)(8), student loan, 91 - Declaratory judgment
From: 6/27/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
John Martin Mata Represented By Michael E Clark
Defendant(s):
National Collegiate Student Loan Represented By
Damian P Richard
NATIONAL COLLEGIATE Represented By Damian P Richard
National Collegiate Student Loan Represented By
Damian P Richard
Joint Debtor(s):
Livier Mata Represented By
Michael E Clark
2:00 PM
Plaintiff(s):
John Martin Mata Represented By Michael E Clark Austin C Smith
Livier Mata Represented By
Michael E Clark Austin C Smith
Trustee(s):
Helen R. Frazer (TR) Pro Se
2:00 PM
Adv#: 6:18-01096 Pringle v. Bank of the West
From: 6/27/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Bank of the West Pro Se
Plaintiff(s):
John Pringle Represented By
Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
2:00 PM
Adv#: 6:18-01040 Cisneros v. Harter et al
(Defendant Connie Flach Dismissed 6/5/18) (Defendant John Rose Dismissed 6/20/18) (Defendant Tammy Rose Dismissed 6/20/18) (Defendant Brennan Rose Dismissed 6/20/18) (Defendant KayLynne Rose Dismissed 6/20/18)
From: 4/25/18, 6/27/18 EH
Docket 1
08/22/2018
The Status Conference is CONTINUED to October 17, 2018, 2:00 p.m. per the Plaintiff's request for time to finalize a settlement.
APPEARANCES WAIVED.
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
Defendant(s):
Joseph Harter Represented By
2:00 PM
Todd L Turoci
John Rose Represented By
Dina Farhat
Tammy Rose Represented By
Dina Farhat
Brennan Rose Represented By Dina Farhat
KayLynne Rose Represented By Dina Farhat
Plaintiff(s):
A. Cisneros Represented By
Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
From: 3/21/18, 6/27/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01078 Simons (TR) v. Parks et al
EH
Docket 10
On October 30, 2017, Trending Up ("Debtor") filed for chapter 7 relief. Larry Simons is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Statement of Financial Affairs indicates that tranfers totaling $36,000 were made to Mr. and Mrs. Parks (collectively, the "Parks" or "Defendants") of 975 Kostka Lane in Florissant, MO 63031 (the "Kostka Address").
On April 3, 2018, the Trustee filed suit against the Parks seeking avoidance and recovery of preferential transfers, preservation of the same, and disallowance of claims (the "Complaint"). On April 4, 2018, the Trustee filed his executed summons indicating service on the Parks at the Kostka Address. On May 17, 2018, the Trustee requested entry of default as against the Parks. The Clerk entered default on the same date. On July 30, 2018, the Trustee filed his Motion for Default Judgment (the "Motion").
On August 9, 2018, the Parks filed Opposition to the Motion ("Opposition").
On August 15, 2018, the Trustee filed his reply ("Reply").
2:00 PM
The Opposition asserts that the Trustee failed to obtain personal jurisdiction because he did not validly serve the Parks at their correct address. The Opposition underscores that Trustee realized he did not have their correct address because he later apparently served the Parks at their residence in early August.
FRBP 7004(b)(1) requires service of a summons and complaint by mailing a copy of the summons and complaint to the individual's dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession. Fed. R. Bankr. P. 7004. In their declaration, the Parks assert that they have never used the Kostka Address and that it has never been their work or home address. (Parks Decl.s).
In his Reply, the Trustee asserts that the address was served on the Parks based on the following facts: (1) the Debtor listed the Kostka Address on the SOFA; (2) Debtor’s CEO, the daughter of the Defendants, confirmed that the address in the SOFA was accurate when she was questioned at the meeting of creditors; and (3) prior correspondence to the Kostka Address addressed to the Defendants was not returned, thus Trustee had reason to believe the address was accurate.
Here, the Trustee does not dispute that the Kostka Address is neither the Parks’ residence nor that they are not employees or officers of the Debtor such that service on them at the Kostka Address could be proper under Rule 7004. Thus, based on the evidence presented by the Defendants, the Court finds that service of the summons and Complaint was improper. The Motion must be denied on that basis.
However, as to dismissal of the case, the Trustee is correct that improper service does not require the court to dismiss an action where service may still be obtained given that the Trustee asserts the time limit for filing the action has not expired. Grammenos
Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972) (internal citations omitted).
Finally, the Opposition asserts that the Trustee’s refusal to withdraw the Motion after being notified that he had improperly served the Parks, constitutes an
2:00 PM
abuse of process. On these grounds, the Opposition seeks an award of fees and costs in an amount of $1,200 for having had to file opposition to the Motion. However, pursuant to §105(a), the Court’s inherent power to award sanctions requires that the litigant must have "engaged in bad faith or willful disobedience of a court's order." Chambers v. NASCO, Inc., 501 U.S. 32, 45-47 (1991). In Chambers, the Court left no question that a court may levy fee-based sanctions when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, delaying or disrupting litigation, or has taken actions in the litigation for an improper purpose. Here, the record does not support a finding that the Trustee had the requisite bad faith. Instead, the Trustee relied upon the statements of the Parks’ own daughter and on the bankruptcy petition in determining to serve the Defendants at the Kostka address. Moreover, the Court is not inclined to award fees on a request in an opposition to a motion. The Defendants are free to seek sanctions via request for an order to show cause pursuant to LBR 9020.
For the foregoing reasons, the Motion is denied without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Trending Up Represented By
Daniel King
Defendant(s):
Robert Parks Represented By
Kathleen P March
Barbara Parks Represented By Kathleen P March
Movant(s):
Larry D Simons (TR) Pro Se
2:00 PM
Larry D Simons (TR) Pro Se
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01078 Simons (TR) v. Parks et al
From: 6/5/18 Also #40
EH
Docket 1
- NONE LISTED -
Debtor(s):
Trending Up Represented By
Daniel King
Defendant(s):
Robert Parks Represented By
Kathleen P March
Barbara Parks Represented By Kathleen P March
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01132 Marquez v. Amini
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jordan Halston Amini Pro Se
Defendant(s):
Jordan Halston Amini Pro Se
Plaintiff(s):
Gustavo Marquez Represented By Curtis M King
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
Also #44 EH
Docket 13
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
by Wayne W Suojanen on behalf of Mina Farah against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18 Also #43
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Also #46 EH
Docket 13
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
(A) by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18 Also #45
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
EH
Docket 27
On December 8, 2017, Mark Bastorous and Bernadette Shenouda (collectively, "Debtors") filed their petition for chapter 7 relief. Subsequent to the filing, five adversary suits were filed by various plaintiffs alleging that the Debtors engaged in fraudulent business transactions in connection with their real estate business activities.
On March 12, 2018, the instant adversary proceeding ("Complaint") was filed by Chienan Chen and Chun-Wu Li ("Plaintiffs") against the Debtors and 3 Columnar Ladera LLC, Mike Bareh, and MB Capital Group LLC (collectively, "Defendants"). An amended complaint was filed by the Plaintiffs on April 8, 2018 (the "FAC"). On May 25, 2018, the after Defendants filed their first motions to dismiss, the parties stipulated to permit the filing of a Second Amended Complaint the ("SAC") and the motions to dismiss were taken off calendar. The SAC was filed on June 15, 2018.
On June 29, 2018, the Debtors filed a motion to dismiss the SAC ("Motion").
Plaintiffs filed their Opposition to the Motion on August 8, 2018 ("Opposition"). Debtors filed their reply on August 15, 2018 ("Reply"). The SAC seeks a determination of nondischargeability under §§ 523(a)(2)(A) and (a)(6).
2:00 PM
In reviewing a motion to dismiss under Rule 12(b)(6), a court may only consider the complaint, documents incorporated by reference in the complaint, and matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A court accepts the plaintiff's factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see Ileto v. Glock, 349 F.3d 1191, 1200 (9th Cir. 2003). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To plead sufficiently, a plaintiff must proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Accordingly, "where the claim is plausible—meaning something more than a sheer possibility, but less than a probability—the plaintiff's failure to prove the case on the pleadings does not warrant dismissal." OSU Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012) (internal quotation marks omitted).
Rule 9(b) of the Federal Rules of Civil Procedure ("Rule 9(b)") provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). This is because allegations of fraud "must be specific enough to give a defendant notice" of its allegedly fraudulent conduct so that the defendant "may defend against the charge." MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1092 (N.D. Cal. 2014) (citing Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985)). As a general matter, allegations sounding in fraud "must satisfy the particularity requirement of Rule 9(b)." Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (citing Vess v. Ciba–Geigy Corp. USA, 317 F.3d
1097, 1103–04 (9th Cir. 2003).)
While Rule 9(b) requires that Plaintiffs allege fraud with particularity, "knowledge[ ] and other conditions of a person's mind may be alleged generally." Fed.
R. Civ. P. 9(b). In other words, "[t]he requirements of Rule 9(b) may be 'relaxed as to
2:00 PM
matters peculiarly within the opposing party's knowledge,' if the plaintiffs cannot be expected to have personal knowledge of the facts prior to discovery." In re Gupta Corp. Sec. Litig., 900 F. Supp. 1217, 1228 (N.D. Cal. 1994) (citing Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987).) Similarly, for allegations based upon "information and belief" to be facially plausible, either the facts on which the allegations are based must be "peculiarly within the possession and control of the defendant," or the belief must be "based on factual information that makes the inference of culpability plausible." Vavak v. Abbott Labs., Inc., 2011 WL 10550065, at *2 (C.D. Cal. June 17, 2011) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010).) "To satisfy Rule 9(b), a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about [the purportedly fraudulent] statement, and why it is false." Mui Ho
v. Toyota Motor Corp., 931 F. Supp. 2d 987, 992 (N.D. Cal. 2013) (quoting Cafasso, United States ex rel v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)) (internal quotation marks omitted) (formatting in original).
DISCUSSION
As a threshold matter, the Debtors assert that the SAC is insufficient because the Plaintiffs have not "made a connection to the underlying non-bankruptcy law cause of action supporting the request for money judgment". (Mot. at p. 5). The prayer for relief, however, belies Debtors’ contention in that the Plaintiffs plainly seek a nondischargeability determination as to the debts represented by the $150,000 and
$100,000 loans allegedly made by Chen and Li, respectively. Moreover, Counts 1 and 2 of the SAC explicitly make reference only to nondischargeability claims. However, the Debtors are correct that to the extent that the SAC seeks compensatory damages, the Court’s eventual judgment will not award such fees absent a request for and determination regarding a money judgment. Absent such a request, the Court’s final ruling shall be limited to the entry of a judgment as to the nondischargeability claims.
The remainder of the Motion asserts in generalized fashion that the SAC fails to plead sufficient factual content to support the claims under §§ 523(a)(2)(A) and (a)
(6) arguing in essence that the SAC’s failure to specifically enumerate how each allegation ties to the elements of the nondischargeability claims should be fatal. Here, the SAC plainly satisfies the Rule 8(a) and Rule 9 standards and sets forth a plain statement indicating how the Defendant Bastorous and his "alter ego" companies engaged in a scheme to induce investors into lending funds for real estate projects while omitting and/or misrepresenting the true uses of the funds loaned. The
2:00 PM
allegations in the SAC plausibly assert that Bastorous and Bareh obtained the loans from Plaintiffs by misrepresentations, fraud and/or that they caused willful and malicious injury to the Plaintiffs.
Finally, the Court finds that the SAC only in conclusory fashion makes reference to Bernadett Shenouda. As such, the Court is inclined to GRANT the Motion as to Shenouda without prejudice. Additionally, although the SAC makes reference to § 523(a)(4) in ¶ 24, this claim is not otherwise referenced in the complaint and as such, the Court infers that the Plaintiffs opted not to pursue a claim for nondischargeability on this basis.
Based on the foregoing, the Court is inclined to DENY the Motion in its entirety as to Defendant Bastorous but to GRANT the Motion in its entirety as to Defendant Shenouda.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag Jason E Goldstein
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
Also #47 & #49 EH
Docket 32
On December 8, 2017, Mark Bastorous and Bernadette Shenouda (collectively, "Debtors") filed their petition for chapter 7 relief. Subsequent to the filing, five adversary suits were filed by various plaintiffs alleging that the Debtors engaged in fraudulent business transactions in connection with their real estate business activities.
On March 12, 2018, the instant adversary proceeding ("Complaint") was filed by Chienan Chen and Chun-Wu Li ("Plaintiffs") against the Debtors and 3 Columnar Ladera LLC, Mike Bareh, and MB Capital Group LLC (collectively, "Defendants"). An amended complaint was filed by the Plaintiffs on April 8, 2018 (the "FAC"). On May 25, 2018, the after Defendants filed their first motions to dismiss, the parties stipulated to permit the filing of a Second Amended Complaint the ("SAC") and the motions to dismiss were taken off calendar. The SAC was filed on June 15, 2018.
On June 29, 2018, the Defendant Mike Bareh filed a motion to dismiss Count Three of the SAC ("Motion"). Plaintiffs filed their Opposition to the Motion on August 9, 2018 ("Opposition"). Defendant filed his reply on August 15, 2018
2:00 PM
("Reply"). Count Three of the SAC seeks a judgment against Defendant and nondebtor Bareh finding fraud was committed against Plaintiffs and a money judgment in the amount of the total investment made by Plaintiffs plus interest and liability for violations of various Securities laws.
The burden of establishing subject matter jurisdiction rests on the party asserting that the court has jurisdiction. McNutt v. GM Acceptance Corp., 298 U.S. 178, 182–83 (1936). Bankruptcy courts have subject matter jurisdiction over proceedings "arising under title 11, or arising in or related to cases under title 11." 28
U.S.C. § 1334(b); see also id. 28 U.S.C. § 157(b)(1). The Court has neither "arising under" nor "arising in" jurisdiction over Defendant Bareh because the claims asserted against him do not arise under title 11, nor are they created or determined by the bankruptcy code. Thus, the only possible basis for this Court’s jurisdiction over Defendant Bareh is "related to" jurisdiction.
"A bankruptcy court's ‘related to’ jurisdiction is very broad, including nearly every matter directly or indirectly related to the bankruptcy." Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 868 (9th Cir.2005) (internal quotation marks omitted).
The Ninth Circuit has adopted the definition of "related to" jurisdiction expressed by the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984). See In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). Under that formulation, a civil proceeding is "related to" the bankruptcy if its outcome could conceivably have any effect on the bankruptcy estate. The proceeding need not be against the debtor or the debtor's property. It is sufficient 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 bankruptcy estate." Fietz, 852 F.2d at 457 (9th Cir.1988) (quoting Pacor, 743 F.2d at 994).
The United States Supreme Court has also recognized the definition of "related to" jurisdiction formulated in Pacor. The Court noted that although Congress intended the "related to" language to evidence a jurisdictional "grant of some breadth," it was not intended to be "limitless." Celotex Corporation v. Edwards, 514 U.S. 300, ––––,
2:00 PM
115 S.Ct. 1493, 1499, 131 L.Ed.2d 403 (1995).
Here, there is no evidentiary record to indicate what effect a ruling on the securities fraud claims might have on the Debtors’ bankruptcy estate. The Debtors are named as defendants in the SAC but only as to the Plaintiffs’ nondischargeability claims. There is no analysis of how judgment in favor of the Plaintiffs as against Bareh would have any impact on the substantive rights of the Debtors or the estate. In re ACI-HDT Supply Co., 205 B.R. 231, 237 (9th Cir. BAP 1997). Plaintiffs have not demonstrated, for example, that Debtors could be bound by res judicata or collateral estoppel based on entry of judgment against Bareh on the claims asserted. Absent such analysis and evidence, the Plaintiffs have failed to meet their burden to establish this Court’s subject matter jurisdiction over Bareh.
Based on the foregoing, the Court is inclined to GRANT the Motion as to Bareh and DISMISS Count 3. Dismissal is without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag Jason E Goldstein
MB Capital Group LLC Pro Se
2:00 PM
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mike Bareh Represented By
Mirco J Haag Jason E Goldstein
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18, 6/6/18 Also #47 & #48
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag Jason E Goldstein
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
EH
Docket 17
08/22/2018
BACKGROUND
On December 8, 2017, Mark Bastourous and Bernadette Shenouda (collectively, "Debtors" or "Defendants") filed their petition for chapter 7 relief.
On March 12, 2018, Mona and Rafet Gerges and St. Mary Properties, LLC (collectively, Plaintiffs") filed their complaint for dischargeability determination under
§§ 523(a)(2), (a)(4), and (a)(6) and for a finding of Alter Ego liability and an award of attorneys’ fees and costs (the "Complaint"). The Complaint alleges generally that the Plaintiffs made loans in the original amount of $540,000 plus interest at 1.66% every six months (the "Advances") to Defendants’ wholly owned entity, MRM Investment Group Inc. ("MRM") and by deposits with Defendants’ wholly owned corporate entity Professional Investment Group, LLC ("PIG"), secured by real property located at 2311
S. 6th Avenue, Arcadia, CA 91006 (the "Arcadia Property").
The Court dismissed the Complaint with leave to amend on May 16, 2018. The First Amended Complaint was filed on June 15, 2018 (the "FAC"). On June 29, 2018, the Debtors filed their Motion to Dismiss the FAC ("Motion"). The Plaintiffs filed their Opposition on August 7, 2018 ("Opposition"). A reply by the Debtors was filed on August 15, 2018 ("Reply").
DISCUSSION
Under Civil Rule 12(b)(6), made applicable in adversary proceedings through
2:00 PM
Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a Civil Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). However, the trial court need not accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under Civil Rule 12(b)(6), a plaintiff must aver in the complaint "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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under Civil Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson
v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
Allegations regarding fraud are subject to a heightened pleading standard.
Civil Rule 9(b), made applicable to adversary proceedings by Rule 7009, requires that a plaintiff must state "with particularity the circumstances constituting fraud. " The
Ninth Circuit has provided guidance for the "with particularity" requirement by stating that to comport with Civil Rule 9(b) the complaint must (1) specify the averred fraudulent representations; (2) aver the representations were false when made; (3) identify the speaker; (4) state when and where the statements were made; and (5) state the manner in which the representations were false and misleading. Lancaster Cmty.
Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991).
Because fraud encompasses a wide variety of circumstances, the requirements of Civil Rule 9(b)—like Civil Rule 8(a)(2)—should provide all defendants with sufficient information to formulate a response. Therefore, the complaint cannot lump multiple defendants together but must "inform each defendant separately of the allegations surrounding [its] alleged participation in the fraud." Swartz v. KPMB LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).
2:00 PM
However, in Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997), the Ninth Circuit acknowledged that "[e]very transaction alleged to be fraudulent does not have to be detailed in the complaint." Instead, the Rule 9(b) requirement is satisfied where the Complaint sets forth an explanation as to why the transactions were false or misleading. See Cooper v. Pickett, 137 F.3d at 625; see also In re Dreier LLP, 453
B.R. 499, 508-09 (Bankr. S.D.N.Y. 2011) ("Under appropriate circumstances, multiple transactions will be collapsed and treated as steps in a single transaction for analysis under the fraudulent conveyance laws.").
Allegations regarding fraud or misrepresentation are subject to a heightened pleading standard. Civil Rule 9(b), made applicable to adversary proceedings by Rule 7009, requires that a plaintiff must state "with particularity the circumstances constituting fraud. " The Ninth Circuit has provided guidance for the "with
particularity" requirement by stating that to comport with Civil Rule 9(b) the complaint must (1) specify the averred fraudulent representations; (2) aver the representations were false when made; (3) identify the speaker; (4) state when and where the statements were made; and (5) state the manner in which the representations were false and misleading. Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991).
Because fraud encompasses a wide variety of circumstances, the requirements of Civil Rule 9(b)—like Civil Rule 8(a)(2)—should provide all defendants with sufficient information to formulate a response. Therefore, the complaint cannot lump multiple defendants together but must "inform each defendant separately of the allegations surrounding [its] alleged participation in the fraud." Swartz v. KPMB LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).
In the FAC, Plaintiffs more clearly set forth that they were induced to invest in the Defendants’ real estate enterprises based both on affirmative misrepresentations regarding the uses for which the Plaintiffs’ investments would be employed by the Defendants. (FAC at ¶19) and based on omissions regarding material facts relevant to the transactions (FAC at ¶14) such as the failure to disclose that a Deed of Trust in favor of the Plaintiffs would be junior to another Deed of Trust (a fact which ultimately resulted in elimination of the Plaintiff’s Deed of Trust via foreclosure. The
2:00 PM
FAC also clarifies that with respect to the Office Property, that the Defendants allegedly knew but failed to disclose that there was a delinquency owed to Wells Fargo Bank, whose lien was senior in priority to the lien granted to the Plaintiffs. (FAC at ¶¶32-33). The FAC then goes on to detail at least three other instances in which Defendants failed to disclose material facts regarding other encumbrances on properties that were senior to the interests conveyed to Plaintiffs by the Defendants to secure loans from them.
In sum, the Court finds that the FAC sufficiently details facts which plausibly set forth claims for actual fraud/misrepresentation and willful and malicious injury under §§ 523(a)(2) and (a)(6).
The sole grounds advanced for dismissal of the Third and Fourth Claims is that assuming the Court dismisses the First and Second Claims, these claims cannot stand alone. Given that the Court is inclined to DENY the Motion as to the First and Second Claims, the Court also is inclined to DENY the Motion as to the Third and Fourth Claims for lack of cause shown.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to DENY the Motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
2:00 PM
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
From: 5/9/18, 5/16/18, 7/11/18 Also #50
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01057 Whitson et al v. Bastorous
From: 5/9/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Blaine Whitson Represented By Benjamin Taylor
Susan Whitson Represented By Benjamin Taylor
2:00 PM
Union Home Loan Profit Sharing Represented By
Benjamin Taylor
Gurpaljit Deoll Represented By Benjamin Taylor
Benny Winefeld Represented By Benjamin Taylor
RM Holdings, LLC Represented By Benjamin Taylor
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
Adv#: 6:18-01127 Tarhuni v. Lakeview Loan Servicing, LLC et al
EH
Docket 10
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing, LLC Represented By Jonathan C Cahill
FNF Servicing Inc Pro Se
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs
Janaya Carter Represented By
Jennifer Needs
LoanCare, LLC Represented By Jonathan C Cahill
Zieve, Brodnax & Steele, LLP Represented By Jennifer Needs
11:00 AM
Movant(s):
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs Jennifer Needs
Janaya Carter Represented By
Jennifer Needs Jennifer Needs
Zieve, Brodnax & Steele, LLP Represented By Jennifer Needs
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01129 Tarhuni v. Home Loan Investment Bank FSB et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Home Loan Investment Bank FSB Represented By
Angie M Marth
US Department of Hud Pro Se
Everett A Barton Jr Pro Se
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 32
On December 17, 2014, Gilbert & Mary Holguin ("Debtors") filed a Chapter 13 voluntary petition. On January 28, 2015, Debtors’ Chapter 13 plan was confirmed.
On August 2, 2018, Debtors filed a motion to waive requirement of application for discharge for Gilbert Holguin ("Gilbert"). The motion indicates that Gilbert passed away in September 2016. On August 6, 2018, Trustee filed comments indicating approval on the condition that a death certificate be provided.
The material relief requested in the motion at issue is a request for certain discharge requirements, outlined in 11 U.S.C. § 1328, to be waived for Gilbert. One court, in considering the applicability of the § 1328 certification requirements to a deceased debtor, stated the following: "The fact that a debtor has died does not necessarily preclude entry of a discharge. However, for a discharge to be granted, a debtor must
11:00 AM
still meet the requirements of 11 U.S.C. § 1328." In re Bouton, 2013 WL 5536212 at
*1 (Bankr. S.D. Ga. 2013). The Court in Bouton avoided the requirements by noting that the instructional course requirement is waived for deceased debtors pursuant to § 109(h)(4).
11 U.S.C. § 1328(a) and (h) outline certain requirements which must be satisfied in order for a Chapter 13 debtor to obtain a discharge. 11 U.S.C. § 1328(a) states, in pertinent part:
Subject to subsection (d), as soon as practicable after completion by the debtor of all payments under the plan, and in the case of a debtor who is required by a judicial or administrative order, or by statute, to pay a domestic support obligation, after such debtor certifies that all amounts payable, after such debtor certifies that all amounts payable under such order or such statute that are due on or before the date of the certification (including amounts due before the petition was filed, but only to the extent provided for by the plan) have been paid . . .
There does appear to be at least one bankruptcy court that specifically addressed the applicability of the § 1328(a) and (h) requirements to a deceased debtor in a jointly filed Chapter 13 case, In re Levy, 2014 WL 1323165 (Bankr. N.D. Ohio 2014).
Notably, the Court stated the following:
Only two documents now stand between the deceased debtor and a discharge: the certifications regarding DSO obligations and § 1328(h). Since further administration was possible, the question becomes whether there is anything either so personal or unique about the end-of-case requirements to prevent either waiver or satisfaction of the requirements by another on behalf [of] a deceased debtor.
Id. at *2. Summarily, the court in Levy reached the following conclusion:
11:00 AM
Since the § 1328(a) certification appears to fall under the latter category [not altering liability on a debt], the court finds no reason that the DSO certification requirement cannot be undertaken by another in appropriate circumstances.
The requirement therefore does not impede "further administration" contemplated under Rule 1016.
Similarly, the court reaches the same conclusion about § 1328(h), albeit along slightly divergent reasoning.
Id. at *3. The Court agrees with the result reached in Levy. If the certification requirements imposed by § 1328 (a) & (h) invariably required an action to be taken by the debtor personally, the purpose of FED. R. BANKR. P. Rule 1016, which permits the continued administration of a Chapter 13 case when appropriate, would be frustrated.
Finally, the Levy stated the following:
For the purposes of filing end of the case documents, the court finds that a person with specific knowledge of the deceased debtor’s finances may act on behalf of the debtor in completing the § 1328(a) and (h) certifications. To establish knowledge, the person must file an affidavit outlining a sufficient factual foundation in order to establish a fitting record.
Id. at *4. In accordance with Levy, the Court will not outright waive a requirement imposed by the Bankruptcy Code, but will allow the requirement to be satisfied by an individual with "specific knowledge of the deceased debtor’s finances."
11:00 AM
In accordance with the above, the Court is inclined to GRANT the motion (assuming a death certificate is provided to the Chapter 13 Trustee) only to the extent of allowing a qualified individual to complete the § 1328 requirements on behalf of Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Gilbert Joe Holguin Represented By Sunita N Sood
Joint Debtor(s):
Mary Cruz Holguin Represented By Sunita N Sood
Movant(s):
Gilbert Joe Holguin Represented By Sunita N Sood
Mary Cruz Holguin Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 47
On March 16, 2016, Juventino & Julie Ramos ("Debtors") filed a Chapter 13 voluntary petition. On June 14, 2016, Debtors’ Chapter 13 plan was confirmed.
On July 6, 2018, Debtors filed a motion for authority to refinance real property. Pursuant to the refinancing, Wells Fargo Bank, N.A. ("Wells Fargo"), the current holder of the first trust deed, will be paid in full, and American Pacific Mortgage will be granted a first trust deed securing a claim of $364,672. On July 10, 2018, Trustee filed comments indicating approving. On July 19, 2018, Wells Fargo filed a conditional non-opposition. On August 2, 2018, Debtors set the matter for hearing.
Wells Fargo’s conditional non-opposition contains the following conditions:
11:00 AM
Creditor’s Claim shall be paid off in full before satisfying any other lien on the Property;
Creditor shall be permitted to submit an updated payoff demand to the applicable escrow or title company facilitating the refinance so that Creditor’s Claim is paid in full at the time the refinance of the Property is finalized.
In the event that the refinance of the Property does not take place, Creditor shall retain its Lien for the full amount due under the Subject Loan; and
To the extent that the Debtors dispute any amounts which Creditor claims are owed on the Subject Loan, that the undisputed amount of Creditor’s Claim be paid at the close of the refinance and for the disputed amount of Creditor’s claim to be segregated in an interest bearing account with an additional
$10,000 in proceeds pending further Order of the bankruptcy court to allow for Creditor’s potential recovery of any of its reasonable attorney’s fees and costs incurred to the extent that Creditor successfully establishes its right to the disputed amount due on its Claim.
The Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Juventino Cabrera Ramos Pro Se
Joint Debtor(s):
Julie Ann Ramos Pro Se
11:00 AM
Movant(s):
Juventino Cabrera Ramos Pro Se
Julie Ann Ramos Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/19/18 EH
Docket 45
- NONE LISTED -
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Movant(s):
Nationstar Mortgage LLC Represented By Brandye N Foreman Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 3/13/17
From: 11/30/17, 1/25/18, 4/12/18, 6/14/18
EH
Docket 30
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
11:00 AM
On October 20, 2017, the Court granted the Motion for OSC and ordered Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
11:00 AM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 63
On March 18, 2017, Irma Cantu ("Debtor") filed a Chapter 13 voluntary petition. On June 15, 2018, Debtor’s Chapter 13 plan was confirmed.
Three days later, Trustee filed a motion to dismiss for failure to submit tax returns or refunds. Debtor did not file an opposition to the motion. After no appearance was made on behalf of Debtor at the motion to dismiss, the case was dismissed on July 25, 2018.
The day before the case was formally dismissed, Debtor filed a motion to vacate a dismissal order which did not yet exist. On July 25, 2018, Trustee filed comments indicating conditional approval of the motion.
Debtor relies on FED. R. CIV. P. Rule 60(b)(1), incorporated into bankruptcy
11:00 AM
proceedings by FED. R. BANKR. P. Rule 9024, which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect."
The legal basis for Debtor’s assertion that the dismissal order should be vacated is that Debtor’s counsel inadvertently did not appear at the hearing due to an office error. It is well established, however, that "an attorney’s ignorance and carelessness does not provide grounds for Rule 60(b) relief." In re Mercado, 144 B.R. 879, 886 (Bankr.
C.D. Cal. 1992) (citing Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir. 1972). And the mere assertion that counsel did not fulfill its duties, but that such carelessness was inadvertent, is clearly inadequate to support Rule 60(b) relief. See, e.g., In re ACME Motors, Inc., 125 B.R. 702, 703 (Bankr. D.R.I. 1991).
"Rule 60(b) relief is extraordinary." Id. Yet, in this court, a request for relief from a Chapter 13 dismissal order has become ordinary. On occasion, the requests are legally sound. Here, however, the evidence provided simply indicates that Debtor’s counsel did not attend the hearing for reasons that are unclear or unstated.
The Seventh Circuit has stated that:
he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds. The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances.
Bakery Mach. & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009). "Although attorney carelessness can [in certain circumstances] constitute ‘excusable neglect’ under Rule 60(b)(1), attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent
11:00 AM
behavior may have on a litigant." Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (collecting cases).
The Court is inclined to GRANT the motion conditioned on compliance with the Trustee’s conditions.
APPEARANCES REQUIRED.
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Movant(s):
Irma Dalia Cantu Represented By Leonard J Cravens Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 41
On September 21, 2017, Ignacio Figueroa ("Debtor") filed a Chapter 13 voluntary petition. On November 13, 2017, Debtor’s Chapter 13 plan was confirmed.
The claims bar date was January 24, 2018. On June 11, 2018, Alederson Law Firm ("Creditor") filed an unsecured claim in the amount of $240,402.04 ("Claim 5"). On June 29, 2018, Debtor filed an objection to Claim as untimely.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing
11:00 AM
upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b)(9) provides that failure to timely file a claim is grounds for disallowance of the claim. Creditor cites § 726(a)(3) as a basis for allowance of a tardily filed claim, but that section is only applicable to Chapter 7 cases. Creditor’s legal analysis refers to state law and state cases, which have no bearing on bankruptcy law and bankruptcy cases.
11:00 AM
The Court will SUSTAIN the objection and DISALLOW Claim 5 in its entirety.
APPERANCES REQUIRED.
Debtor(s):
Ignacio Figueroa Represented By
Ghada Helena Philips
Joint Debtor(s):
Nadia Elizabeth Figueroa Represented By
Ghada Helena Philips
Movant(s):
Ignacio Figueroa Represented By
Ghada Helena Philips
Nadia Elizabeth Figueroa Represented By
Ghada Helena Philips Ghada Helena Philips
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 7/11/18
Also #10 & #11 EH
Docket 144
On December 13, 2017, Sean Coy ("Debtor") filed a Chapter 13 voluntary petition. Ultimately, on July 11, 2018, the case was dismissed. Subsequent to dismissal, Debtor’s counsel, Kim Law Group, P.C. ("Counsel") filed three separate fee applications relating to three different legal matters. On July 24, 2018, Trustee filed comments requesting a hearing on all three applications, although Trustee did not indicate its position on the requested fees.
Fee Application #1 (Dkt. No. 138, amended by Dkt No. 142, then withdrawn by Dkt. No. 143, then amended against by Dkt. No. 144):
It appears that this application requests fees relating to two categories: (1) basic services; and (2) non-basic services. Counsel states that Debtor agreed to pay $6,000 pursuant to the RARA but has, to date, only paid $1,036, leaving
$4,964 unpaid. Counsel also requests an additional $3,745 for non-basic services, billed at a rate of $350/hour. The Court notes that, pursuant to the RARA filed in this case [Dkt. No. 32], Debtor agreed to pay $6,000 for basic services, and the guidelines permit a maximum fee of $6,000 for basic
11:00 AM
services. In the absence of any opposition to this request, given that the amount requested falls within the range permitted by this district, and given
the billing records submitted as Attachment A to the application, the Court is inclined to approve the $4,964 fees requested for basic services.
The second categories of fees requested, fees for non-basic services, relate to fees related to work on a pending adversary proceeding. The Court notes that Debtor was not a party in the adversary proceeding; instead, both parties in the adversary proceeding were lienholders, although Debtor was directly involved in the discovery conducted. Nevertheless, Counsel billed $1,575 for review of pleadings filed in the case. Given that Debtor was not a party in the adversary proceeding, the Court finds these "review" entries to be unreasonable. The Court is inclined to approve the remaining $2,170 in fees which were related to discovery in the proceeding.
Fee Application #2 (Dkt. No. 145)
The second fee applications requests $1,250 for a motion to avoid lien (Dkt. No 46). The Court notes that the amount requested is the presumptively reasonable fee in the Court Manual. In the absence of any opposition to this request, the Court is inclined to approve the presumptively reasonable request of $1,250.
Fee Application #3 (Dkt. No. 146)
The third fee application requests $2,378.96 for an opposed motion to avoid lien (Dkt. No. 111). The Court has reviewed Counsel’s billing entries and, in the absence of any opposition to this request, the Court is inclined to approve this fees in their entirety.
The Court is inclined to approve the fees requested in docket number 144 in a reduced amount of $7,134, and approve the second and third fee applications in their entirety.
11:00 AM
Debtor(s):
APPERANCES REQUIRED.
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 7/11/18
Also #9 & #11 EH
Docket 145
See #9
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$2,378.00
CASE DISMISSED 7/11/18
Also #9 & #10 EH
Docket 146
See #9
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Movant(s):
Sean Phillip Coy Represented By Caroline S Kim
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Zuleima Rosado Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 98
- NONE LISTED -
Debtor(s):
Steven W Moll Represented By Gary J Holt
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 63
On February 2, 2012, Michelle Maki ("Debtor") filed a Chapter 13 voluntary petition. On February 9, 2015, Debtor’s Chapter 13 plan was confirmed. Subsequently, there were two orders to modify the plan.
On May 21, 2018, Debtors filed a motion for hardship discharge. The basis for the hardship discharge is that Debtor’s cousin, who had been contribution $1,200 to Debtor as a joint-tenant at Debtor’s residence, passed away on October 12, 2017. On May 22, 2018, Trustee filed an objection to the motion. On July 23, 2018, Debtor filed a reply.
11 U.S.C. § 1328(b) states:
Subject to subsection (d), at any time after the confirmation of the plan and
11:00 AM
after notice and a hearing, the court may grant a discharge to a debtor that has not completed payments under the plan only if –
the debtor’s failure to complete such payments is due to circumstances for which the debtor should not justly be held accountable;
the value, as of the effective date of the plan, of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the estate of the debtor had been liquidated under chapter 7 of this title on such date; and
modification of the plan under section 1329 of this title is not practicable.
The first and third standard are discretionary standards. The second standard is a mechanical standard referred to as the "best interests of creditors test". Debtors stated they have met the test because their Chapter 13 plan indicates that Chapter 7 liquidation would not result in any payment to unsecured creditors. Trustee disputes this assertion, arguing that Debtor’s second property, located in Arizona, was undervalued on the schedules, and, therefore, there is nonexempt equity available for distribution to unsecured creditors in a hypothetical Chapter 7 proceeding. While Debtor’s reply provides significant documentation, the material provided is less than clear and is not authenticated. Therefore, the Court would require clear evidence of the value of the property located at 2245 Del Rey Dr., Bullhead City, AZ 86442.
Trustee argues that "Debtor has failed to demonstrate that the proposed failure to complete payments under the plan is due to circumstances for which the debtor should not be held accountable." The loss of income is, in this situation, clearly a factor beyond Debtor’s control. The evidence provided in the motion, however, fails to establish any steps taken by Debtor to remarket the property which was the basis for the rental income. Such evidence would be required to establish that the first prong has been satisfied.
Trustee also argues that "Debtor has failed to demonstrate that modification of the
11:00 AM
plan under 11 U.S.C. 1329 is not practicable." The Court notes that the motion, as an attachment, contains amended Schedules I/J, however, those schedules were not filed separately on the docket. Furthermore, as noted by Trustee, the home costs outlined on Schedule J contradict the home costs identified in the motion’s declaration. For these reasons, the Court concludes that the third prong has not been satisfied at this time.
Trustee also argues that Debtor has failed to provide copies of her 2017 tax returns. The Court notes that there is a pending motion to dismiss on that basis currently set for November 8, 2018. Compliance with this duty would be a prerequisite to any hardship discharge.
Trustee argues that Debtor is asking in bad faith because she was previously permitted to retain tax refunds through a stipulation. The Court disagrees on this point. The order approving the stipulation essentially modified the terms of the plan.
Functionally, this stipulation resulted in the equivalent of a suspension of plan payments, to be paid through the plan at a later date. There is no clear reason why such deferred payments would have to be reimbursed prior to a hardship discharge being granted. The failures regarding the reduced mortgage payment, however, do appear to suggest bad faith.
Last, the Court does not accept that a failure of a third party to make "contributions" is a circumstance for which a debtor should not be held accountable for purposes of 11
U.S.C. § 1328(b).
The Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Michelle Ann Maki Represented By Joel M Feinstein
Movant(s):
Michelle Ann Maki Represented By Joel M Feinstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
JUANITA M ROMERO Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Maggie Ruth Thomas Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Clinton Jay Blankenship Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 21
The Court is inclined to DENY the motion for failure to establish that the secured claim of Adobe Springs Village HOA is "a lien on an interest of the debtor in property." Specifically, the Court notes that the abstract of judgment attached to the motion indicates that the defendant is an individual named "Steven M. Caldwell"— who is not the Debtor in the instant case. Additionally, the Court notes that the exhibits to the motion are not authenticated.
APPEARANCES REQUIRED.
Debtor(s):
Patricia Ann Cook Represented By Brad Weil
Movant(s):
Patricia Ann Cook Represented By Brad Weil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #20 EH
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Ann Cook Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Charles Williams, III Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Velasco Represented By
Daniel King
Joint Debtor(s):
Lilian Micaela Velasco Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Xavier Cristobal Luna Represented By Roberto Gil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #29 EH
Docket 15
On May 31, 2018, Gabriel and Jeneke Blanco (collectively, "Debtors") filed their petition for chapter 13 relief. Among the assets of the estate is a 2015 Heartland North Trail Caliber Series M-33BKSS (the "RV"). On June 15, 2018, the Debtors filed their Motion to Value the RV ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the RV’s value, and thus its secured portion, should be determined to be $24,575, with an unsecured deficiency claim for $5,047.70. In support the Debtor asserts that he consulted the NADA Guide. However, a copy of the NADA Guide report was not attached. Nor did the Debtors attach a Certificate of Title indicating the identity of the lienholder or a statement regarding the balance owed.
11:00 AM
As Claimant, Bank of the West, filed Proof of Claim No. 8-1, the Court can overcome the necessity of a Certificate of Title or statement regarding the balance owed. However, to meet their evidentiary burden, the Debtors must provide admissible evidence of the NADA guide report they consulted to determine the value of the RV.
TENTATIVE RULING
For the foregoing reasons, the Court is inclined to CONTINUE the Motion for Debtors to file and serve a supplemental Debtor declaration providing evidence of the NADA guide report consulted to establish fair market value.
APPEARANCES REQUIRED.
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #28 EH
Docket 0
- NONE LISTED -
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 7/9/18
Also #31 EH
Docket 16
- NONE LISTED -
Debtor(s):
Jose Luis Tijerina Represented By Roberto Gil
Joint Debtor(s):
Carmen Xochitl Tijerina Represented By Roberto Gil
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #30 EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Tijerina Represented By Roberto Gil
Joint Debtor(s):
Carmen Xochitl Tijerina Represented By Roberto Gil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Percylyn Agustin Basa Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Romeo Labastida Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 13
On June 4, 2018, Reginald Caldwell ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2016 Ford Fusion (the "Property"). On July 17, 2018, Debtor filed a motion to determine the value of the property. No opposition has been filed.
Debtor’s motion contends that the value of the Property is $11,587, leaving an unsecured portion of $15,662. On August 7, 2018, Wells Fargo Bank filed a proof of claim ("Claim 7"), identifying a claim in the amount of $28,263.17, of which $11,650 is identified as secured.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of
11:00 AM
the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtors assert that the Property’s value, and thus its secured portion, should be determined to be $11,587, with an unsecured deficiency claim for $15,662. In support of its valuation, Debtor has provided an "expert" declaration, with the declaration coming from a paralegal at Debtor’s counsel’s firm.
Given the absence of opposition to the motion, and the fact that Wells Fargo has already filed a proof of claim which identifies a value of the Property nearly identical to the proposed amount, the Court is inclined to accept Debtor’s valuation of $11,587. The Court notes, however, that because the instant motion is not a claim objection, Wells Fargo’s Claim 7 governs as to the amount of the total claim, and, thus, the unsecured portion.
Therefore, Claim 7 will be treated as a secured claim in the amount of $11,587, and an unsecured claim in the amount of $16,676.17.
APPEARANCES REQUIRED.
Debtor(s):
Reginald D. Caldwell Represented By Patricia M Ashcraft
Movant(s):
Reginald D. Caldwell Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #34 EH
Docket 0
- NONE LISTED -
Debtor(s):
Reginald D. Caldwell Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan I. Gallardo Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ann Marie Pearson Represented By Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jorge Avendano Sosa Represented By Jaime A Cuevas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Valerie A. Marrs Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bernice D Johnson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel W. Sargent Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miguel Cisneros Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Omar Rosales Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pedro Ramirez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Florence M Rodriguez Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gregory Scott Curtis Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Cornelius Represented By Paul Y Lee
Joint Debtor(s):
Naomi Rodriguez-Cornelius Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael J Soriano Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Xavier Ramirez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Ana Ramirez Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kimberly Michelle Giron Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Anthony Amendola Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria A Cabello Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Davison Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Diana Rios Garcia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alice Chow Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sheikh Azeem Akhtar Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miriam Torres Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Victor Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marc Streage Pro Se
Joint Debtor(s):
Nicole Miller Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rueben Anthony Castro Represented By Nicholas M Wajda
Joint Debtor(s):
Adrian Marie Castro Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jason Lawrence Hignite Represented By Nicholas M Wajda
Joint Debtor(s):
Violet Sandy Hignite Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 72
- NONE LISTED -
Debtor(s):
Jeanette Johnson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 69
- NONE LISTED -
Debtor(s):
Carlos Vincent Valdez Represented By Gregory M Shanfeld
Joint Debtor(s):
Grace G. Valdez Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 97
- NONE LISTED -
Debtor(s):
Carmen Lucya Mendez Represented By Sara E Razavi
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 218
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 114
- NONE LISTED -
Debtor(s):
Homer Wilson Represented By Leonard J Cravens
Joint Debtor(s):
Evelyn Wilson Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Eric Kissell Represented By
William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 130
- NONE LISTED -
Debtor(s):
Otis Easter Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Michael Joseph Fodor Represented By Michael R Totaro Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 109
- NONE LISTED -
Debtor(s):
Richard Hill Lindsay Represented By Emilia N McAfee
Joint Debtor(s):
Laura Lee Lindsay Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
- NONE LISTED -
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 117
- NONE LISTED -
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #75 EH
Docket 113
- NONE LISTED -
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Dinari Williams Represented By Emilia N McAfee
Joint Debtor(s):
Chandra Denman-Williams Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 73
- NONE LISTED -
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 80
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #79 EH
Docket 78
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 90
- NONE LISTED -
Debtor(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
- NONE LISTED -
Debtor(s):
John Wesley Wilson Jr. Represented By Julie J Villalobos
Joint Debtor(s):
Michelle Janet Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Octavio Rubio Mata Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 152
- NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Gary F Pico Represented By
Patricia M Ashcraft
Joint Debtor(s):
Mercedes P. Pico Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Michael Ray Sandoval Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
- NONE LISTED -
Debtor(s):
Joseph V. Lessa Represented By Paul Y Lee
Joint Debtor(s):
Nichole Alyce Lessa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Angel Benavidez Represented By William P Mullins
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Albert Granados Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Fernando Ramos Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 25
- NONE LISTED -
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 28
- NONE LISTED -
Debtor(s):
Suzanne Berry Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Andre J Booker Represented By Paul Y Lee
Joint Debtor(s):
Carrie L Booker Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 80
- NONE LISTED -
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos Jenny L Doling
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Susan Violet Guillot Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #98 EH
Docket 30
- NONE LISTED -
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Jesse Norman Dofelmire Represented By Carey C Pickford
Joint Debtor(s):
Roucelle Frias Dofelmire Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Earma Denise Young Washington Represented By
Brad Weil
Joint Debtor(s):
Marvin Ray Washington Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 116
- NONE LISTED -
Debtor(s):
Jose Munguia Valencia Represented By Patricia A Mireles
Trustee(s):
Charles W Daff (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Ray Valdepena III Represented By Ryan A. Stubbe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 22
- NONE LISTED -
Debtor(s):
Jose Guadalupe Sandoval Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 79
- NONE LISTED -
Debtor(s):
Julio C. Davila Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 56
- NONE LISTED -
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Josephine Theobald Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Angel Rodriguez Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Michelle Singleton Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Nereeka Tamar Haynes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 85
- NONE LISTED -
Debtor(s):
Evan Todd Flynn Represented By Emilia N McAfee
Joint Debtor(s):
Elizabeth Flynn Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 48
- NONE LISTED -
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #115 EH
Docket 39
- NONE LISTED -
Debtor(s):
Geth-Rang Jr. Takawo Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Michelle Kiklang Bernardino Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Raymond Burrola Represented By Elena Steers
Joint Debtor(s):
Estela Burrola Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Keely J Barrett Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION From: 11/28/17, 1/23/18, 3/6/18, 4/10/18, 6/5/18, 7/10/18
EH
Docket 100
11/28/2017
Service: Proper Opposition: Yes
Debtors have provided evidence that regular payments were made between May 2016 and November 1, 2017 (with the exception of the August 2016 and December 2016 payments for which Debtors are seeking evidence). Exhibit 5, which is the Movant’s summary of post-petition payments reflects numerous debits for 2016 payments which appears to corroborate Debtors’ assertion that refunds were made due to a mix-up in payments being made by the Trustee’s office.
APPEARANCES REQUIRED.
Debtor(s):
Achilles A. LaSalle Jr. Represented By Lazaro E Fernandez
Joint Debtor(s):
Elsie LaSalle Represented By
Lazaro E Fernandez
10:00 AM
Movant(s):
HSBC Bank USA, National Represented By
Armin M Kolenovic Debbie Hernandez Rosemary Allen Jamie D Hanawalt
Trustee(s):
Amrane (RS) Cohen (TR) Represented By
Amrane (RS) Cohen (TR)
10:00 AM
MOVANT: WELLS FARGO BANK
From: 6/26/18, Adv fr. 8/31/18, 8/1/18 EH
Docket 38
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Yolanda Llamas Represented By Rebecca Tomilowitz
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, N.A.
From: 6/13/18 EH
Docket 66
- NONE LISTED -
Debtor(s):
Marquis Vincent Campbell Represented By Eliza Ghanooni
Movant(s):
HSBC BANK (USA) N.A. Represented By April Harriott
Matthew R. Clark III Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ACAR LEASING LTD DBA GM FINANCIAL LEASING
EH
Docket 51
- NONE LISTED -
Debtor(s):
William Richard Newborg Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Serina Rae Newborg Represented By
Ramiro Flores Munoz
Movant(s):
ACAR Leasing LTD dba GM Represented By Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TRINITY FINANCIAL SERVICES, LLC
EH
Docket 127
08/28/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jose Munguia Valencia Represented By Patricia A Mireles
Movant(s):
Trinity Financial Services LLC Represented By Richard J Reynolds
Rafael R Garcia-Salgado
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC DBA GM FINANCIAL
EH
Docket 39
08/28/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT relief from the § 1301 co-debtor stay
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Hugo Sanchez Cruz Represented By
James Geoffrey Beirne
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 7/31/18 EH
Docket 25
- NONE LISTED -
Debtor(s):
Patricia Anne Goffney Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nancy L Lee
Trustee(s):
Arturo Cisneros (TR) Represented By Christina J O
10:00 AM
MOVANT: BANK OF NEW YORK MELLON
From: 6/26/18 EH
Docket 20
08/28/2018
Service is Proper Opposition: Withdrawn
GRANT relief from the stay under § 362(d)(1). DENY pursuant to § 362(d)(1) for lack of cause shown. GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Service is Proper Opposition: Yes
Pursuant to § 541, Debtor’s interest in her real property became property of the estate upon the commencement of the bankruptcy proceeding notwithstanding Debtor’s indication on her statement of intention that she intended to surrender the property.
Pursuant to Trustee’s opposition, Trustee believes that there is sufficient equity in the property for it to be administered and Trustee has begun taking steps to do so. As
10:00 AM
such, the Court is inclined to CONTINUE the hearing for Trustee to market the property.
APPEARANCES REQUIRED.
Debtor(s):
Heeyoung Lee Rhee Pro Se
Movant(s):
Bayview Loan Servicing, LLC, as Represented By
Nancy L Lee
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: DPM ACQUISITION LLC
EH
Docket 40
08/28/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT as to relief from § 1301 co-debtor stay
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jesus Manuel Remigio Represented By Nicholas M Wajda
Movant(s):
DPM Acquisition, LLC Represented By Thomas R Mulally
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FINANCIAL PARTNERS CREDIT UNION
From: 7/24/18, 8/21/18 EH
Docket 31
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION
From: 6/13/18 EH
Docket 10
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
Seterus, Inc. as the authorized Represented By Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST N.A.
EH
Docket 17
08/28/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request for annulment of stay to validate postpetition acts. GRANT request as to ¶ 9 except that the request is granted "on recording".
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Maria D Lopez Ramirez Represented By Edgar P Lombera
Movant(s):
U.S. BANK TRUST, N.A., AS Represented By Randall D Naiman
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 36
08/28/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request for waiver of co-debtor stay. GRANT as to ¶¶ 3 and 12. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ruby Lee Frazier Represented By Michael R Totaro
Movant(s):
THE BANK OF NEW YORK Represented By Angie M Marth Wendy A Locke
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA, INC.
EH
Docket 21
08/28/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. Request for APO is DENIED.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Hugo Perez Pro Se
Movant(s):
Santander Consumer USA Inc., an Represented By
Jennifer H Wang
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: ALLY FINANCIAL INC
EH
Docket 4
08/28/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Restart Solar, LLC Represented By
Sunil A Brahmbhatt
Movant(s):
Ally Financial Inc. Represented By Adam N Barasch
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 12
8/28/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: FEDERAL INSURANCE COMPANY AND LEXINGTON INSURANCE COMPANY
EH
Docket 162
08/28/2018
Service is Improper Opposition: None
The Court finds that the attachment to the proof of service provides insufficient evidence of the parties served with the Motion and the manner of service. The Court is inclined to CONTINUE the hearing on the Motion to September 25, 2018, at 2:00
p.m. for Movant to file and serve an Amended Notice of Motion and Motion with notice of the continued hearing date and a properly completed proof of service. The deadline for Movant to file the amended pleadings is September 3, 2018.
APPEARANCES WAIVED.
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
Movant(s):
Emporium Hardwoods Operating Represented By
2:00 PM
Susan M Benson
2:00 PM
MOVANT: NISSAN- INFINITI LT
EH
Docket 78
NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
NISSAN-INFINITI LT. Represented By
Michael D Vanlochem
2:00 PM
(2) Requiring Status Report EH
Docket 4
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
2:00 PM
FINAL HEARING
From: 7/17/18, 7/31/18 Also #21 & #22
EH
Docket 10
NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 7/17/18 Also #20 & #22 EH
Docket 8
NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
(2) Requiring Status Report Also #20 & #21
EH
Docket 5
NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
11:00 AM
Docket 43
The Court is inclined to GRANT the motion, avoiding the lien of Citibank National Assocation.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jason Lopez Represented By
Gary Swanson Terrence Fantauzzi
Joint Debtor(s):
Julie Lopez Represented By
Gary Swanson Terrence Fantauzzi
Movant(s):
Jason Lopez Represented By
Gary Swanson Terrence Fantauzzi
Julie Lopez Represented By
Gary Swanson Terrence Fantauzzi
11:00 AM
Trustee(s):
Christopher R Barclay (TR) Pro Se
11:00 AM
EH
Docket 37
On March 22, 2011, Rene Ferrer & Lucia Lopez ("Debtors") filed a Chapter 7 voluntary petition. On July 27, 2011, Debtors received a discharge, and, one week later, the case was closed.
On August 11, 2017, Debtors filed a motion to reopen case. On June 8, 2018, approximately ten months after the motion was filed, an order was entered granting the motion to reopen for Debtor to file amended schedules. Pursuant to this order, the Debtors were permitted until September 6, 2018, to amend the schedules. On June 29, 2018, Debtors amended Schedule B to identify a claim of unknown value related to a personal injury claim in pending litigation in case 2:13-ev-10975. Debtors also exempted the claim on Schedule C (the "Exemption"). On July 9, 2018, the Court granted Trustee’s application to employ Goe & Forsythe, LLP as general counsel.
On July 25, 2018, Trustee filed a motion objecting to the Exemption. Trustee argues that Debtors cannot claim exemptions under both CAL. CIV. P. CODE §§ 703 and 704. Trustee further argues that Debtors should be precluded from amended their exemptions on the basis of equitable estoppel or quasi-estoppel. Finally, Trustee
11:00 AM
appears to argue that the Court order permitting Debtors to amend their exemptions was improper in the absence of a Rule 9006 motion.
Debtors concede that it was improper to claim exemptions pursuant to both CAL. CIV.
P. CODE §§ 703 and 704, but argue that they should not be estopped from further amending their schedules to properly exempt the personal injury claim.
CAL. CIV. P. CODE § 703.140(a)(1) states: "If spouses are joined in the petition, they jointly may elect to utilize the applicable exemption provisions of this chapter other than the provisions of subdivision (b), or to utilize the applicable exemptions set forth in subdivision (b), but not both." Debtors have conceded that it was improper to claims exemptions pursuant to both § 703 and § 704. Therefore, the Court will sustain Trustee’s objection and deny Debtors’ exemption.
The Court declines to reach Trustee’s alternative arguments that estoppel principles should result in the denial of Debtors’ exemption.
Trustee has also argued that Debtors failed to follow the procedural requirements for amending schedules after a case has been closed. The Court notes that there is case law which explicitly supports Trustee’s argument. See, e.g., In re Dollman, 583 B.R. 268, 271-73 (Bankr. D.N.M. 2017) (summarizing different approaches); 9 COLLIER’S ON BANKRUPTCY ¶ 1009.02[3] (16th ed. 2015) ("Once the case has been closed, a debtor may have to show excusable neglect in order to amend the schedule of exemptions."). There is also case law which explicitly disagrees with Trustee’s argument. See, e.g., In re Goswani, 304 B.R. 386, 392 (B.A.P. 9th Cir. 2003) ("If the drafters had intended to require court permission before the filing of amended schedules in reopened cases, they would have explicitly said so.").
11:00 AM
Given the unsettled case law on this issue, the Court declines to reach this alternative argument at this point. Importantly, the Court notes, however, that there is currently an order on the docket allowing Debtors to file amended schedules until September 6, 2018. If Trustee believes this order was procedurally improper, a motion to reconsider might be warranted.
The Court is inclined to SUSTAIN the objection.
APPEARANCES REQUIRED.
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
EH
Docket 112
On October 3, 2013, Iraj Maqsoudi ("Debtor") filed a Chapter 7 voluntary petition. On January 14, 2014, Debtor obtained a discharge. On January 15, 2014, Trustee filed an application to employ Wesley H. Avery, APC ("Counsel") as general bankruptcy counsel. That application was approved by the Court on February 13, 2014.
On January 21, 2014, Trustee filed a complaint against Mandana Banihashem for: (1) avoidance and recovery of fraudulent transfer; (2) avoidance and recovery of preferential transfer; and (3) accounting and turnover. Ultimately, on September 4, 2015, Trustee prevailed on summary judgment with regard to nine of the eleven causes of action.
On January 30, 2014, Trustee filed a complaint Debtor (1) to revoke the Debtor’s discharge; and (2) for an accounting and turnover. Ultimately, this adversary was voluntarily dismissed by Trustee on July 12, 2016.
On December 2, 2015, the Court approved Trustee’s application to employ Neiman Realty ("Broker") as a real estate broker. On March 22, 2016, the Court approved the sale of certain real property located at 11889 Magnolia Ave., Riverside, CA 92503, which was the subject of the transfer adversary proceeding, for the amount of
$692,000.
On October 19, 2016, the Court approved Trustee’s application to employ Donald Fife ("Accountant") as accountant.
11:00 AM
On February 2, 2017, Counsel filed a fee application in the aggregate amount of
$158,944.97.1 On April 3, 2017, Accountant filed a fee application in the aggregate amount of $2,401.10. Pursuant to Court order entered April 3, 2017, the Court also allowed an administrative expense for the attorney for creditor Mustafa Mayar, who conducted an examination of Debtor in the case, in the total amount of $8,491.02.
11 U.S.C. § 330(a)(3) (2005) provides factors to be considered in determining the reasonableness of requested compensation. After a review of Counsel’s fee application, the Court has significant concerns with the amount requested, primarily based upon the excessiveness of the amounts billed, and the fact that the entire case was billed at $475/hour without any time billed by associations or paralegals at lower rates. For example, the first day that Counsel worked on the case, January 13, 2014, Counsel lists the following time entries (with the amount charged):
-Telephone conference with the Trustee regarding new matter: $95
-Review of encumbrances against commercial building and calculation of approximate fair market value: $712.50
-Review of motion for relief from stay filed by judgment creditor: $427.50
-Legal research in support of Trustee’s opposition to motion for relief from stay filed by judgment creditor: $237.50
-Preparation of Trustee’s opposition to motion for relief from stay filed by judgment creditor, and preparation of Memorandum of Points and Authorities in support thereof: $2,042.50
-Preparation of declarations in support of Trustee’s opposition to motion for relief from stay filed by judgment creditor; telephone call with the Trustee’s broker re same: $1,330
-Review and analysis of Notice of Claims Bar Date: $95
-Review of encumbrances against residence and calculation of approximate fair market value: $570.
The Court notes the following concerns with Counsel’s billing on the first day on the case. First, 4.3 hours for the opposition and points and authorities appears excessive, given that the documents contain two paragraphs, two additional sentences, and some "fill-in-the-blank" responses. Second, 2.8 hours for the
11:00 AM
declarations appears excessive, given that each declaration is approximately one-
page long. Third, the totality of 11.6 hours for what constituted opposing the relief from stay and, possibly, some minor case research, appears excessive. This is especially true in light of the fact that by the time Counsel had completed the opposition to the relief from stay, it had billed 10.2 hours for the day. The opposition, however, was filed at 3:50 p,m,, implying that the telephone conference with the Trustee must have started no later than 5:38 a.m., even if Counsel worked continuously on the matter thereafter.
The issues noted above are not the exception in the billing summary submitted by Counsel, but, rather, the trend. Similarly, on March 10th and 11, 2014, Counsel billed nine hours for opposing Debtor’s motion to convert to Chapter 13; Trustee’s opposition was not extensive and Debtor’s schedules indicated he had no disposable income at the time. Likewise, on October 31-November 1, 2016, Counsel billed 7.4 hours for preparation of the fee application narrative, which is approximately five pages long and mostly form language. Finally, between May 28, 2015 and June 10, 2015, Counsel billed 21.8 hours for the preparation of the pleadings related to the summary judgment motion in the § 548 adversary proceeding, which appears to include more than seven hours billed for the preparation of the Trustee’s real estate broker’s declaration, a declaration which was approximately a page and contained various broker documents as exhibits.
Additionally, Counsel’s billing entries appear to include excessive charges for relatively routine tasks. The following are some of the examples:
1/16/14 – "Review of the discharge of the Debtor" -- $47.50
3/25/14 – "Review and analysis of tentative ruling for status conference" -- $95 4/30/14—"Preparation of request for mediation and order thereon" (two entries) --
$950
7/19/14 – "Review and analysis of Mediator’s certificate" (two entries) -- $95 10/14/15-10/15/14 –Preparation of status reports for two status conferences --
$1,975
12/3/15 -- Preparation of two, relatively simple orders -- $950
While the issues noted above may be representative of the concerns with Counsel’s fee application, the issues are by no means limited to the entries listed
11:00 AM
above.
APPEARANCES REQUIRED.
Debtor(s):
Iraj Maqsoudi Represented By
Thomas W Gillen - DISBARRED - John F Brady
Trustee(s):
John P Pringle (TR) Represented By Wesley H Avery
11:00 AM
Docket 70
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 2,819.34 Trustee Expenses: $ 728.64
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Walter Ray Henderson Represented By Alec L Harshey
Joint Debtor(s):
Anne Budell Henderson Represented By Alec L Harshey
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 71
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 2,606.72 Trustee Expenses: $ 436.57
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Jose Sebastian Olvera Jr Represented By Nicholas M Wajda
Joint Debtor(s):
Angela Joanne Olvera Represented By Nicholas M Wajda
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
11:00 AM
EH
Docket 40
On May 12, 2017, Yvonne & Oscar Sanchez ("Debtors") filed a Chapter 7 voluntary petition. Included on Schedule A was certain real property located at 5202 El Sueno St., San Antonio, TX 78233 (the "Property"). Trustee asserts that there is non-exempt equity in the Property
On July 24, 2018, Trustee filed a motion to approve compromise pursuant to FED. R. BANKR. P. Rule 9019. Trustee proposes to sell the non-exempt equity in the property to Debtor for $10,000.
FED. R. BANKR. P. Rule 9019 provides that:
11:00 AM
On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.
The Ninth Circuit Court of Appeals have previously outlined the factors to be considered in approving a compromise pursuant to Rule 9019: (1) the probability of success in the litigation; (2) the difficulties to be encountered in the matter of collection; (3) the complexity, expense, inconvenience and delay of litigation; and (4) the interest of creditors with deference to their reasonable. See In re A&C Props., 784 F.2d 1377, 1381 (9th Cir. 1986). The listed factors assist the Court in determining "the fairness, reasonableness and adequacy of a proposed settlement agreement." Id.
Trustee’s compromise motion does not provide the information the Court requires to apply the A&C Properties factors or to assess the reasonableness of the settlement because the motion fails to identify the value of the Property or estimate the value of the non-exempt equity in the Property, rendering it impossible to determining the reasonableness of the settlement amount.
In the absence of any evidence regarding the value of the Property or the value of the non-exempt equity in the Property, the Court cannot approve the compromise when only vague and general arguments have advanced in support of the compromise.
The Court is inclined to CONTINUE the matter for Trustee to file a supplemental declaration.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Yvonne L Sanchez Pro Se
Joint Debtor(s):
Oscar Sanchez Pro Se
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 46
On June 6, 2017, Sandra Harter ("Debtor") filed a Chapter 7 voluntary petition. On Schedule A, Debtor listed certain secondary real property located at 9628 7th St., Victorville, CA 92392 (the "Property"). On Schedule C, Debtor claimed an exemption in the Property in the amount of $175,000. On January 18, 2018, the Court approved a stipulation between Trustee and Debtor whereby Debtor would carve-out $40,000 of the scheduled exemption for the benefit of the estate. On February 27, 2018, the Court approved Trustee’s application to employ Levene, Neal, Bender, Yoo & Brill L.L.P. as general counsel. On April 23, 2018, the Court approved Trustee’s application to employ Steven Speier as real estate broker.
On August 8, 2018, Trustee filed a motion for an order: "(1) authorizing sale of estate’s right, title and interest in real property free and clear of liens; (2) approving overbid procedures; (3) approving payment of real estate broker’s commissions; and
finding purchasers are a [sic] good faith purchasers." The proposed sale price is
$360,000. Trustee proposes to pay $132,000 to secured creditor Quicken Loans ("Creditor"), $135,000 for Debtor’s exemption, and $28,800 for closing costs. The remaining $64,200 will accrue to the bankruptcy estate.
11:00 AM
On August 15, 2018, Creditor filed a conditional non-opposition to the sale motion. Creditor requests that the sale be conditioned on full payment of Creditor’s lien "per a written, current payoff demand." From a review of the contents of the Motion filed, specifically the proposed distribution of sale proceeds, it is the Court’s understanding that Trustee intends to satisfy the concerns of Creditor.
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary course, after notice and a hearing. A sale pursuant to § 363(b) requires a demonstration that the sale has a valid business justification. In re 240 North Brand Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
While the motion contains minimal evidence of the Property’s proposed marketing, Trustee has also secured a carve-out from Debtor’s exemption and the purchase price is higher than the value of the Property identified on the schedules. Given the fact that the sale appears to be a good faith, arms-length transaction, and the fact that the estate would receive $64,200 for distribution to unsecured creditors, the Court concludes that Trustee has articulated an adequate business reason for the sale.
11:00 AM
Sale Free & Clear of Liens
11 U.S.C. § 363(f) (2010) states:
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 a legal or equitable proceeding, to accept a money satisfaction of such interest.
Trustee contends that § 363(f)(3) is applicable. First, Trustee contends that aggregate value of all encumbrances on the property is $132,000, which is exceeded by the purchase price of $360,000.
Because Trustee has established that § 363(f)(3) is applicable, Trustee has met its burden in securing a sale free and clear of liens.
14-Day Stay
11:00 AM
FED. R. BANKR. P. Rule 6004(h) states: "An order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." The Court deems the absence of objections to be consent to the relief requested, pursuant to Local Rule 9013-(1)(h), and, therefore, will waive the stay of Rule 6004(h).
Miscellaneous Provisions
The Court has reviewed the remainder of Trustee’s miscellaneous requests. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has reviewed the requested Broker compensation of 6% of the sale price (totaling $21,600) and finds such compensation to be reasonable. The Court has reviewed Trustee’s proposed distribution of sale proceeds, and the Court finds that such distribution is reasonable and proper.
Finally, the Court has reviewed the declarations of the purchasers, Oscar and Ana Garcia (the "Garcias"), and finds the declarations sufficient for a determination that the Garcias are good faith purchasers pursuant to 11 U.S.C. § 363 (m).
The Court is inclined to GRANT the motion in its entirety. Specifically, the Court is inclined to authorize the sale of the Property free and clear of liens, approve the overbid procedures, approve the Broker’s compensation, determine that the Garcias are good faith purchasers and waive the 14-day stay under Rule 6004(h).
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
11:00 AM
EH
Docket 86
NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
11:00 AM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
EH
Docket 29
NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
11:00 AM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
11:00 AM
Also #11 - #16
EH
Docket 41
The Court is inclined to GRANT the motion, avoiding the lien of Persolve, Inc.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 42
The Court is inclined to GRANT the motion, avoiding the lien of Unifund.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 43
The Court is inclined to GRANT the motion, avoiding the lien of Citibank.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 44
The Court is inclined to GRANT the motion, avoiding the lien of Western States.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 45
The Court is inclined to GRANT the motion, avoiding the lien of Investment Retrievers.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
11:00 AM
Kanwalpreet Kaur Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 46
The Court is inclined to GRANT the motion, avoiding the lien of American Express.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 47
The Court is inclined to GRANT the motion, avoiding the lien of JP Morgan Chase.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rajpal Singh Grewal Represented By Brad Weil
Stuart G Steingraber
Joint Debtor(s):
Kanwalpreet Kaur Grewal Represented By Brad Weil
Stuart G Steingraber
Movant(s):
Rajpal Singh Grewal Represented By Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Kanwalpreet Kaur Grewal Represented By
11:00 AM
Trustee(s):
Brad Weil Brad Weil
Stuart G Steingraber Stuart G Steingraber
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:18-01138 Speier v. Conestoga Settlement Services, LLC et al
Also #18 EH
Docket 5
On June 29, 2016, John & Ellen Tackett ("Debtors") filed a Chapter 7 voluntary petition. On August 24, 2016, the Court approved Trustee’s application to employ Goe & Forsythe, LLP as Trustee’s counsel. On October 11, 2016, Debtors received a discharge.
On November 14, 2016, the Court granted Trustee’s motion objecting to exemptions claimed in a Provident Trust Group account and in certain real property located in El Segundo.
On December 7, 2017, Trustee filed a motion for a Rule 2004 examination of Debtors. This motion was granted on January 2, 2018, and that matter was ultimately resolved on June 14, 2018.
2:00 PM
On June 20, 2018, Trustee filed a complaint for: (a) breach of written contract; (b) rescission and restitution for fraud; (c) money had and received; (d) unjust enrichment; (e) fraud; (f) negligent misrepresentation; (g) negligence; (h) rescission and restitution for sale of unqualified securities; (i) damages for sale of unqualified securities; (j) rescission: securities: misrepresentation; (k) damages: securities: misrepresentation; (l) contempt for willful violation of automatic stay pursuant to 11
U.S.C. § 105; and (m) elder financial abuse. The complaint names as defendants: (1) Conestoga Settlement Services, LLC; (2) Conestoga International Holdings LLC; (3) Conestoga Trust; (4) Provident Trust Group, LLC; (5) De Leon & Washburn, P.C.; (6) Jeff Converse; (7) Michael Woods; (8) Michael McDermott; (9) Thomas Washburn; and (10) Hector De Leon.1
On July 30, 2018, Hector De Leon, De Leon & Washburn, P.C., and Thomas Washburn (collectively, the "De Leon Defendants") filed a motion to dismiss for failure to state a claim. On August 15, 2018, Trustee filed its opposition.
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to FED. R. CIV. P. Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000) ("All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party."). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
2:00 PM
LEGAL ANALYSIS
As noted in footnote 1, the causes of action which are directed against the De Leon Defendants are causes of action (h) and (j)-(m). The De Leon Defendants’ summarize their argument in the following language:
Plaintiff’s Complaint fails to state a claim upon which relief can be granted as against the De Leon Defendants because (1) the agent’s immunity rule bars all of Plaintiff’s claims; (2) California public policy precludes Plaintiff’s claims;
(3) Plaintiff has failed to state viable securities laws claims because the Complaint does not contain facts establishing materially [sic] assistance in the violations at issue; (4) Plaintiff has not pled securities fraud with the requisite particularity; (5) Plaintiff has not pled a viable elder abuse claim; and (6) Plaintiff has not pled a viable claim for violation of the automatic stay.
[Dkt. No. 5, pg. 2, lines 12-18].
A. Agent’s Immunity Rule
The De Leon Defendants first argument, and the argument most thoroughly briefed, is that "all of Plaintiff’s claims implicate the agent’s immunity rule, because they are predicated on the notion that the De Leon Defendants conspired or aided its client/principal, Conestoga, in committing securities fraud or a violation of the automatic stay.
The parties not only disagree on the application of the appropriate legal standard to the facts of this case, they disagree on the legal standard itself. The De Leon Defendants appear to derive their proffered standard from Klotz v. Milbank, Tweed, Hadley & McCloy, 238 Cal. App. 4th 1339, 1351 (Cal. App. 2015). The Court is skeptical that Klotz represents the appropriate guiding case on the agent’s immunity rule for two reasons: (1) neither the word "agent" nor the word "immunity" appear in
2:00 PM
the case at all; and (2) the standard set forth in Klotz is a statutory creation.2 Specifically, CAL. CIV. CODE § 1714.10(a),(c) state the following:
No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed.
(c) This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.
The analysis of this statutory must begin with a determination regarding whether
§ 1714.10(a) is applicable at all to the instant situation. As noted by Trustee, the plain language of the statute states that it governs conspiracy which arises "from any attempt to contest or compromise a claim or dispute." Here, the work engaged in by the De Leon Defendants does not fit the statutory language – it was transactional work. See, e.g., Stueve v. Berger Kahn, 222 Cal. App. 4th 327, 331 (Cal. Ct. App.
2013) ("Rather, they say, the claims arose from transactional activities . . . [w]e must agree that the alleged schemes do not fall within the plain wording of section 1714.10, subdivision (a)."). Therefore CAL. CIV. CODE § 1714.10(a) does not directly govern the
2:00 PM
instant situation.
Nevertheless, while the gatekeeping function of CAL. CIV. CODE § 1714.10(a) may not be directly invoked by the present situation, it appears that the statute, in part, serves as a codification of the agent immunity rule. See Richards v. Cnty. of L.A., 2017 WL 7411159 at *4, n.2 (C.D. Cal. 2017) ("The California Legislature amended California Civil Code § 1714.10 pursuant to the California Supreme Court’s decision in Doctors’ Co. v. Superior Court, 49 Cal. 3d 39 (Cal. 1989), which established the agent’s immunity doctrine. Considering that § 1714.10 effectively codified the agent’s immunity rale [sic], the Court will discuss the immunity and statutory defenses together.") (citation omitted). Ultimately, the Ninth Circuit has recently used the standard set forth in CAL. CIV. CODE § 1714.10 to describe the agent’s immunity rule:
The Agent’s Immunity Rule shields an attorney who merely acted as an agent or employee of a third party when the third party had a duty to the plaintiff.
The Rule does not shield an attorney who had an independent legal duty to the plaintiff, or an attorney who went beyond a professional duty as part of a conspiracy for attorney’s financial gain.
ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1037 (9th Cir. 2016). It does not appear that there is any allegation in the complaint that the latter half of the above exception is applicable here, so the Court will instead focus on whether the De Leon Defendants had an independent legal duty to Debtors.
As conceded by the De Leon Defendants, an attorney has a legal duty to "refrain from defrauding nonclients." Id. (quoting Rickley v. Goodfriend, 212 Cal. App. 4th 1136, 1151 (Cal. Ct. App. 2013) ("It is well established that an attorney has an independent legal duty to refrain from defrauding nonclients."). Therefore, the operative question is whether the allegations that the De Leon Defendants provided material assistance in an alleged securities fraud violation are sufficient to constitute an allegation that the De Leon Defendants breached their legal duty to refrain from defrauding nonclients.
2:00 PM
Material Assistance in Securities Violation
As noted by the De Leon Defendants, while not cited in the complaint, Trustee appears to rely upon CAL. CORP. CODE § 25504.1 in making the argument that the De Leon Defendants are liable for materially assisting in the alleged securities violations. The De Leon Defendants, in their argument, cite AREI II Cases, 216 Cal. App. 4th 1004, 1014 (Cal. Ct. App. 2013), which states: "it is not enough that a person provided material assistance in a larger scheme to defraud if that person had no role or involvement in the part of the scheme that constituted a violation of the securities." The De Leon Defendants then assert that: "the De Leon Defendants are alleged to have occupied a more structural role with respect to the marketing of the alleged securities – i.e., the De Leon Defendants, by virtue of their role as counsel, performed work that enabled Conestoga to do business."
The above characterization of the allegations in the complaint understate the alleged role of the De Leon Defendants. The final section of the eighth, tenth, and eleventh claims for relief states the following:
At the time of the acts alleged herein, DL&W, Washburn, and De Leon, in their capacity as counsel to Conestoga for the structuring of the transactions complained of herein, materially assisted in the sale of the securities in violation of law, in that they knew it was Conestoga’s practice to sell unregistered securities through unregistered agents, knowing that victims of the schemes would be induced to sign disclosures concerning accredited- investor status that the Trustee is informed and believes DL&W, Washburn, and/or De Leon prepared for Conestoga, and in fact conspired with Conestoga to facilitate such non-accredited investors to sign those documents. In so acting, DL&W, Washburn and De Leon acted with intent to deceived or defraud.
[Dkt. No. 1, pg. 24 lines 7-15] (emphasis added). As stated by AREI II Cases:
2:00 PM
To support liability under section 25504.1 for such a violation, the complaint must include allegations demonstrating how the defendant assisted in the act of selling or offering to sell securities by means of false and misleading statements. Such assistance may take the form of aiding in the preparation of offering documents relied upon by investors, communicating misrepresentations directly to investors, or otherwise playing a material, facilitating role in the act of selling or attempting to sell the securities by means of misrepresentations or omissions of material fact.
Id. at 1015 (emphasis added); see also Schaffer Family Invs., LLC v. Sonnier, 120 F. Supp. 3d 1028, 1045 (C.D. Cal. 2015) (same). The crux of the complaint is that the De Leon Defendants provided services which were directly instrumental in committing the alleged securities violations, not that the De Leon Defendants provided some peripheral services which happened to have been utilized in connection with the alleged violations. Therefore, the Court rejects the De Leon Defendants argument that Trustee has failed to adequately plead a violation of CAL. CORP. CODE § 25504.1.
Now the Court must return to the question of whether an allegation that the De Leon Defendants violated CAL. CORP. CODE § 25504.1 constitutes an allegation that the De Leon Defendants violated their duty to refrain from defrauding Debtors. Returning to the origin of CAL. CIV. CODE § 1714.10, Doctors’ Co. v. Superior Court, 49 Cal. 3d 39 (Cal. 1989), the California Supreme Court stated the following:
The attorneys in Gruenberg were relieved from liability for helping their insurer-clients to violate the latter’s duty of good faith and fair dealing not because the duty was contractual but because it was a duty peculiar to the insurers, not shared by their attorneys. The duty invoked here (and in Wolfrich) is likewise peculiar to the insured because the duty is created by a statute which imposes it only on persons in the insurance business. . .
Finally, we anticipate that the impact of our holding, barring liability of employees or agents for conspiracy to cause their principal to violate a duty
2:00 PM
that is binding on the principal alone, will be relatively narrow where the violated duty is other than contractual. The duties imposed by section 790.03 are somewhat unusual in that their application is expressly restricted to "persons engaged in the business of insurance." The binding effect of many other statutory duties is not subject to such restrictions.
Id. at 46, 48 (citations omitted). Here, the statutory scheme outlined in CAL. CORP. CODE § 25500 et. seq. imposes duties on both the principal, and the agent, albeit a higher standard on the former. See Siegal v. Gamble, 2016 WL 1085787 at *6 (N.D. Cal. 2016) ("Liability for securities violations also extends to the primary violator’s employees and to those who materially aid a primary section 25401 violator who deals in securities. This means that agents, associates, affiliates, and broker-dealers may be ‘secondarily’ liable if they act with the ‘intent to deceive or defraud.’") (emphasis added) (citation omitted). Therefore, because the relevant statutory scheme also imposes a duty on those providing material assistance to the primary wrongdoer, the De Leon Defendants cannot use the agent immunity rule to bar the suit.
Public Policy/Privilege
The De Leon Defendants next argue that: "[p]ublic policy therefore requires the dismissal of Plaintiff’s claims, because the existence of the [attorney-client] privilege prevents the De Leon Defendants from mounting a defense." [Dkt. No. 5, pg. 13, lines 4-5]. The Court concludes that this argument is premature at this stage. As stated in Reilly v. Greenwald & Hoffman, LLP, the Court must consider whether:
(1) The evidence at issue is the client’s confidential information, and the client insists that it remain confidential; (2) given the nature of plaintiff’s claim the confidential information is highly material to the defendants’ defenses;
(3) there are "ad hoc" measures available to avoid dismissal such as "sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings; and (4) it would be fundamentally unfair to proceed
2:00 PM
196 Cal. App. 4th 891, 904 (Cal. Ct. App. 2011); see also Dietz v. Meisenheimer & Herron, 177 Cal. App. 4th 771 (Cal. Ct. App. 2009); Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (Cal. 1994).
Here, the Court is unable to properly consider the above factors at this stage. First, at this point, the client at issue has not insisted the information remain confidential.
Second, it is not clear whether the confidential information is highly material to the defense. Third, the Court has a variety of "ad hoc" measures which could be employed to at least somewhat address this issue. Finally, the Court notes that it is unclear, at this point, whether the crime/fraud exception outlined in CAL. EVID. CODE § 956 may be applicable in this situation. For all of these reasons, the Court concludes it would be premature to dismiss the action on this ground at this time.
Exempt Transactions
The De Leon Defendants next argue that CAL. CORP. CODE § 25102 exempts the specific transaction at issue from the qualification requirements of § 25110. Section 25102(q)(1) states, in part:
Any offer or sale of any viatical or life settlement contract or fractionalized or pooled interest therein in a transaction that meets all of the following criteria:
Sales of securities described in this subdivision are made only to qualified purchasers or other persons the issuer reasonably believes, after reasonable inquiry, to be qualified purchasers. A corporation, partnership, or other organization specifically formed for the purpose of acquiring the securities offered by the issuer in reliance upon this exemption may be a qualified purchaser only if each of
2:00 PM
the equity owners of the corporation, partnership, or other organization is a qualified purchaser. Qualified purchasers include the following: . . .
The Court agrees with Trustee that it is not the mindset of the De Leon Defendants, but rather the mindset of the issuer, that is material when considering the application of the above exception. The Court finds that the complaint plausibly alleges that the issuer here did not reasonably believe the Tacketts were qualified investors.
Fraud-Particularity
The De Leon Defendants next argue that the complaint fails to plead fraud with particularity. Specifically, the De Leon Defendants argue that PSLRA imposes heightened pleading requirements, and that "[d]istrict courts have applied the PSLRA’s exacting standards to attempts to plead securities fraud under California’s Blue Sky laws." [Dkt. No. 5, pg. 17, lines 10-13]. The cases cited by the De Leon Defendants in support of the latter half of that contention, however, do not support the point. Specifically, both Mueller and Mausner involve the application of PSLRA standards to claims brought under that act, regardless of whether the complaint contained additional causes of action pursuant to California state law. See, e.g., Mausner v. Marketbyte LLC 2013 WL 12073832 at *6 (S.D. Cal. 2013). Nevertheless, as stated by Mausner: "Similar to PSLRA’s heightened pleading requirement for the alleged misrepresentation or omission, Rule 9(b) requires that the complaint ‘state with particularity the circumstances constituting fraud.’ The Ninth Circuit has applied Rule 9(b)’s requirements to federal securities fraud claims." Id.
FED. R. CIV. P. Rule 9(b) provides that: "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Here, it is unclear whether the complaint alleges that the De Leon Defendants, themselves, committed a fraudulent act. While the tenth claim for relief, and the corresponding background sections of the complaint, contain sufficiently detailed allegations of the statements made by Jeff Converse, the Court agrees with the De Leon Defendants that the complaint does not contain adequately detailed allegations of fraud committed by the De Leon Defendants. Furthermore, given that CAL. CORP. CODE § 25504.1
2:00 PM
ostensibly provides for liability for someone who provides material assistance to someone else who is committed fraud, it is not clear whether the complaint needs to contain allegations of fraud specifically against the De Leon Defendants.
Given that the determination of whether the alleged conducted of the De Leon Defendants constitutes fraud may have significant consequence in relation to the attorney-client privilege, the Court is not inclined to decide the issue on the record before it.3 If the De Leon Defendants wish to continue with their argument, construed as a Rule 9(b) argument, then the Court desires further briefing from both parties on whether the alleged conduct of the De Leon Defendants needs to be, or is intended to be, itself characterized as fraud.
Elder Abuse
The Court notes that the allegations contained in the thirteenth claim for relief, sections 138-149 of the complaint, do not appear to allege any action taken by the De Leon Defendants which could constitute elder abuse after Mr. Tackett turned sixty- five years old. Specifically, the Court notes that section 144, the section of the thirteenth claim for relief which deals with actions taken by the De Leon Defendants, does not refer to any action taken with respect to Mr. Tackett that would have occurred after Mr. Tackett turned sixty-five years old. Instead, the complaint recites the exact same language as the securities violations claims for relief, describing action which results to the preparation of documents related to the alleged sale of securities. Furthermore, section 138’s reference to the background section does not remedy the deficiency, because the only action imputed to the De Leon Defendants at the relevant time period concerns settlement efforts with the Trustee. Regardless of whether such settlement efforts were undergone in good faith, such efforts simply do not appear to fit within the statutory definition of elder abuse.
Automatic Stay
The Court agrees with the De Leon Defendants that Trustee has failed to allege a
2:00 PM
willful violation on the part of the De Leon Defendants. Specifically, the Court notes the following operative section of the complaint:
DL&W, Washburn, and De Leon participated in Conestoga’s violation of the automatic stay, by colluding with Conestoga to engage in a pretense of "settlement" discussions – with knowledge of the bankruptcy stay – while Conestoga proceeded to empty out the Tacketts’ interest in the Policies, and then abruptly withdrawn Conestoga’s purported settlement offer.
[Dkt. No. 1, pg 30]. The Court concludes that the above allegations are insufficient to constitute an automatic stay violation under 11 U.S.C. § 105(a) for the following reasons. First, engaging in settlement discussions with the Chapter 7 Trustee is common and not, itself an automatic stay violation. Second, unlike the claims for relief related to securities violations, there is no specific statutory section which imposes a duty on an attorney (or an agent) to refrain from providing assistance to an action which violates the automatic stay. Finally, unlike the cases cited by Trustee, Trustee has not alleged a direct action by the De Leon Defendants which violated the automatic stay. Therefore, because Trustee cannot rely on the "assistance theory" in the context of an automatic stay violation, the twelfth claim for reliefs fails as to the De Leon Defendants.
2:00 PM
The Court is inclined to GRANT the De Leon Defendants’ motion to dismiss as to the Twelfth and Thirteenth Claims for Relief, without prejudice, and DENY the De Leon Defendants’ motion to dismiss with regard to the Eighth, Ten, and Eleventh Claims for Relief, subject to discussion regarding whether the Complaint needs to, or is intended to, contain allegations of fraudulent conduct on the part of the De Leon Defendants themselves.
APPEARANCES REQUIRED.
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Michael McDermott Pro Se
Michael Woods Pro Se
Hector De Leon Represented By Jasmin Yang
Thomas Washburn Represented By Jasmin Yang
Jeff Converse Pro Se
Provident Trust Group, LLC Represented By Marshall J Hogan
Conestoga Trust Pro Se
Conestoga International Holdings, Pro Se Conestoga Settlement Services, LLC Pro Se
De Leon & Washburh, P.C. Represented By
2:00 PM
Jasmin Yang
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
Movant(s):
De Leon & Washburh, P.C. Represented By Jasmin Yang
Thomas Washburn Represented By Jasmin Yang
Hector De Leon Represented By Jasmin Yang
Plaintiff(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01138 Speier v. Conestoga Settlement Services, LLC et al
§25503]; (10) Rescission: Securities: Misrepresentation [Cal. Corp. §25501];
(11) Damages: Securities: Misrepresentation [Cal. Corp. §25501]; (12) Contempt for Willful Violation of Automatic Stay Pursuant to 11 U.S.C. § 105; and (13) Elder Financial Abuse [Cal. Welf. & Inst. Code § 15600 et seq.] Nature of Suit: (14 (Recovery of money/property - other)) (Eastmond, Thomas)
Also #17 EH
Docket 1
NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Pro Se Conestoga International Holdings, Pro Se Conestoga Trust Pro Se
2:00 PM
Provident Trust Group, LLC Represented By Marshall J Hogan
De Leon & Washburh, P.C. Represented By Jasmin Yang
Thomas Washburn Represented By Jasmin Yang
Hector De Leon Represented By Jasmin Yang
Jeff Converse Pro Se
Michael Woods Pro Se
Michael McDermott Pro Se
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
Plaintiff(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
Also #20 EH
Docket 46
On November 18, 2016, Javier & Carmen Lopez (collectively "Debtors"; individually, "Javier" and "Carmen") filed a Chapter 7 voluntary petition. On March 6, 2017, Amarillo College of Hairdressing ("Plaintiff") filed a non-dischargeability complaint against Javier pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). On July 12, 2017, the clerk entered default against Javier.
On October 17, 2017, Plaintiff filed a motion for leave to file an amended complaint to include Carmen as a defendant. On November 7, 2017, Debtors filed their opposition. On November 13, 2017, the Court granted the motion, and, on December 11, 2017, Plaintiff amended its complaint to include Carmen as a defendant. On February 26, 2018, the clerk entered default against Carmen.
On April 5, 2018, Plaintiff filed a motion for default judgment. According to Plaintiff,
2:00 PM
Javier, while employed as the Dean of Education at Plaintiff’s Palm Desert campus, received, through direct deposit, twice his agreed upon salary for a period of one year. Plaintiff asserts that the direct deposit authorization form contained a provision which granted Plaintiff the right to correct any erroneous overpayments of funds. After alerting Javier of the erroneous double payment, Javier refused to voluntarily reimburse Plaintiff for the overpayment. Plaintiff also asserts that Javier was aware of the erroneous double payment during the time when the double payments were made.
On January 2, 2014, Plaintiff filed a state court complaint against Javier for breach of contract, fraud, and conversion. On September 15, 2015, the state court granted Plaintiff’s motion for summary judgment as to all causes of action, and entered judgment in the amount of $49,603.08.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
2:00 PM
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
Here, Plaintiff served Debtors at the address listed on their bankruptcy schedules and served Debtor’s attorney via ECF. Therefore, service is proper.
Merits of Plaintiff’s claim
Upon default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); see also Almog v. Golden Summit Investors Group, Ltd., 2012 WL 12867972 at *4 (C.D. Cal. 2012) ("When reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.").
Here, the complaint includes three causes of action, all related to non-dischargeability: (1) 11 U.S.C. § 523(a)(2)(A); (2) 11 U.S.C. § 523(a)(4); and (3) 11 U.S.C. § 523(a)
The above provisions read, in pertinent part:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
2:00 PM
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
The Court notes that it is, at best, unclear whether any of the three provisions are applicable to the facts here. For example, in In re Sterling, the bankruptcy court analyzed whether an employee’s retention of overtime pay at double the contractual rate satisfied the either 11 U.S.C. § 523(a)(2)(A) or 11 U.S.C. § 523(a)(6). 479 B.R. 444 (Bankr. E.D. Mich. 2012). Respecting 11 U.S.C. 523(a)(2)(A), the court first noted that the provision can apply to "misleading omissions" or "a scheme to deprive or cheat another of property or a legal right." Id. at 449. The bankruptcy court noted, however, that omission or silence only establishes the requisite intent if the debtor had an affirmative duty to disclose. Id. (applying Michigan law and the silent fraud doctrine). After noting that the plaintiff had not identified any contractual duty to disclose, the bankruptcy court noted that: "[a] duty to disclose may also arise in equity," but ultimately concluded the following:
The present case does not present any circumstances that would give rise to such an equitable duty. To the contrary, Plaintiff was in a position of control and had at least equal if not superior knowledge, gained from repeated, but unavailing attempts to correct the problem. Plaintiff, as Defendant’s employer, had access to the payroll information and, with the exercise of reasonable diligence, could have discovered the continuing overpayments at any time.
Id. at 450 (also questioning whether plaintiff’s reliance on defendant’s silence was justifiable because the information was in the control of plaintiff).
2:00 PM
Here, neither the complaint nor the motion for default judgment include any allegation that Javier affirmatively misled Plaintiff, nor do they contain any basis upon which the Court could conclude that Javier had a contractual or an equitable duty to disclose the overpayments to Plaintiff. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a) (2)(A).
11 U.S.C. § 523(a)(4) contains three different exceptions to dischargeability: (1) fraud or defalcation while acting in a fiduciary capacity; (2) larceny; and (3) embezzlement. Regarding fraud or defalcation while acting in a fiduciary capacity, the elements are:
(1) the existence of an express trust; (2) the debt was caused by fraud or defalcation; and (3) the debtor acted as a fiduciary to the creditor at the time the debt was created. See, e.g., In re Niles, 106 F.3d 1456, 1459 (9th Cir. 1997). Clearly Plaintiff has not satisfied the standard for fraud or defalcation while acting in a fiduciary capacity because, among other things, Javier was not acting in a fiduciary capacity as to his salary and his salary was certainly not the corpus express trust. See, e.g., Matter of Cantrell, 88 F.3d 344, 347 (5th Cir. 1996) ("The court also correctly opined that, in the absence of an express trust and a recognizable corpus, 11 U.S.C. § 523(a)(4) is inapplicable.").
Plaintiff also does not appear to have satisfied the standard for larceny or embezzlement. "Larceny is the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker’s use without the consent of the owner." 4 COLLIER’S ON BANKRUPTCY ¶ 523.10[2] (16th ed. 2009). Here, it appears doubtful that Javier could be considered to have "taken" the excess salary payments which Plaintiff caused to be directly deposited in Javier’s bank account. Embezzlement, on the other hand, contains three elements: "(1) property rightfully in the possession of a nonowner; (2) nonowner’s appropriation of the property to a use other than which it was entrusted; and (3) circumstances indicating fraud." In re Littleton, 942 F.2d 551, 555 (9th Cir. 1991). While there may be a colorable argument that embezzlement has occurred in this case, such an argument has not been detailed in the complaint or the motion for default judgment. Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non- dischargeable pursuant to 11 U.S.C. § 523(a)(4).
2:00 PM
Regarding § 523(a)(6) the elements are: "(1) willful conduct, (2) malice, and (3) causation." See, e.g., In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995). Here, Plaintiff’s complaint simply recites the legal standard, notes that the state court awarded a judgment based, in part, on fraud, and Plaintiff’s motion for default judgment contains the material state court pleadings as an attachment. The Court deems the allegations in the complaint to be insufficient to establish non- dischargeability under § 523(a)(6). See In re Sterling, 479 B.R. 444, 452-455 (Bankr.
E.D. Mich. 2012) (detailing § 523(a)(6) analysis in context of retention of salary overpayment). Therefore, the Court requires further briefing if Plaintiff wishes to establish that the debt is non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
Finally, the Court notes that it appears Plaintiff has assumed that the use of issue preclusion is appropriate in this case, but has not briefed the issue.
Issue preclusion applies in nondischargeability proceedings to bar the relitigation of factual issues that were determined in a prior state court action. See, e.g., Grogan v. Garner, 498 U.S. 279, 284-85, n.11 (1991). To determine the issue-preclusive effect of a California state court's judgment, California preclusion law must be applied. See 28 U.S.C. § 1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380
(1985); Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir. 1995). Under California law, the party asserting issue preclusion has the burden of establishing the following "threshold" requirements:
the issue sought to be precluded must be identical to that decided in a former proceeding;
the issue must have been actually litigated in the former proceeding;
it must have been necessarily decided in the former proceeding;
the decision in the former proceeding must be final and on the merits; and,
the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.
Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001).
2:00 PM
Additionally, the application of issue preclusion requires a "mandatory ‘additional’ inquiry into whether imposition of issue preclusion would be fair and consistent with sound public policy." In re Khaligh, 338 B.R. 817, 824–25 (9th Cir. B.A.P. 2006). As stated by the California Supreme Court
We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. Accordingly, the public policies underlying
collateral estoppel—preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound judicial policy.
Lucido v. Super. Ct., 51 Cal. 3d 335, 342–43 (Cal. 1990) (internal citations omitted). The Court requires further briefing on the appropriateness of issue preclusion in this case, including legal arguments explaining how the applicable state court causes of action (presumably fraud by concealment) translate to the non-dischargeability standards.
The Court is inclined to CONTINUE the matter for further briefing.
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
2:00 PM
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Movant(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
Eamon Jafari
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01054 Amarillo College of Hairdressing, Inc. v. Lopez et al
From: 5/11/17, 6/22/17, 8/17/17, 10/19/17, 11/9/17, 2/1/18, 2/8/18, 3/22/18, 5/30/18, 7/25/18
Also #19 EH
Docket 1
NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Defendant(s):
Javier Lopez Represented By
Christopher Hewitt
Carmen Lopez Pro Se
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Plaintiff(s):
Amarillo College of Hairdressing, Represented By
2:00 PM
Trustee(s):
Eamon Jafari
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
EH
Docket 37
NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Movant(s):
Itria Ventures, LLC Represented By Michael F Chekian
Plaintiff(s):
Itria Ventures, LLC Represented By Michael F Chekian
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
2:00 PM
Adv#: 6:18-01146 Sonnenfeld v. Richardson
EH
Docket 1
NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua Cord Richardson Represented By Amid Bahadori
Plaintiff(s):
Cleo Sonnenfeld Represented By
D Edward Hays Laila Masud
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
U.S.C. §523(a)(6) and COUNTERCLAIM of Shatara Adrienne Thompson for Defamation, Counterclaim by Robert Lee Thompson Jr, Shatara Adrienne Thompson against Beatriz M Gutierrez
From: 8/2/18 Also #24
EH
Docket 19
NONE LISTED -
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
2:00 PM
Plaintiff(s):
Beatriz M Gutierrez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
From: 5/3/18, 8/2/18 Also #23
EH
Docket 1
NONE LISTED -
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
Plaintiff(s):
Beatriz M Gutierrez Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01050 Deutsche Bank National Trust Company, as Certifica v. FMJM RWL III
Kristin)
From: 4/26/18, 5/10/18, 6/14/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Caroline S Kim
Defendant(s):
FMJM RWL III Trust 2015-1 Represented By Neeru Jindal
Plaintiff(s):
Deutsche Bank National Trust Represented By
Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01141 Balderas et al v. Valderrama
EH
Docket 3
On March 21, 2018, Frank Valderrama ("Debtor") filed a Chapter 7 voluntary petition. On July 2, 2018, Debtor received a discharge.
On June 25, 2018, Elizabeth Balderas & Jose Carrillo (collectively, "Plaintiffs") filed a complaint against Debtor for non-dischargeability pursuant to 11 U.S.C. § 523(a)(2) (A).
On July 17, 2018, Debtor filed a motion to dismiss for failure to state a claim. On August 10, 2018, Plaintiffs filed their opposition.
2:00 PM
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
MONEY JUDGMENT IN NON-DISCHARGEABILITY PROCEEDINGS
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469
B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014). Nevertheless, in the complaint at issue here, Plaintiffs appear1 to have set forth only one cause of action: non-dischargeability pursuant to 11 U.S.C. § 523(a)(2)(A). 11 U.S.C. § 523(a) alone is not a basis to enter a money judgment; the plain language of the statute provides that it is a basis for finding a debt to be non-dischargeable. If Plaintiffs seek a money judgment, they need to clearly delineate a non-bankruptcy law cause of action supporting that request.2 In order words, Plaintiffs need to identify their theory of a debt which exists under applicable state law. Without that showing, it is impossible to determine the applicable legal analysis.
NON-DISCHARGEABILITY STANDARD
As a preliminary note, the Court notes that while Plaintiffs’ opposition references § 523(a)(4), that subsection is not raised in the complaint and, therefore, any arguments regarding that subsection will not be addressed.
2:00 PM
11 U.S.C. § 523(a)(2)(A) states:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
The elements of a § 523(a)(2)(A) claim are well-established: (a) the debtor made representations; (b) which were known to be false; (c) the representations were made with the intention and purpose of deceiving the creditor; (d) the creditor relied on such representations; (e) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
As noted by Debtor, FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)(A) non- dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008). "In order to properly plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." Id.
The Court agrees with Debtor that the complaint at issue here utterly fails to plead fraud with specificity. The complaint does not, at any point, identify a particular statement at a particular time, in a particular place. Nor is the complaint adequately detailed regarding the contents of the statements made. For example, section 14 of the complaint states: "Debtor intentionally mislead [sic] Plaintiffs by failing to disclose the truth regarding the Project." [Dkt. No. 1, pg. 8, lines 19-20]. This assertion simply does not contain the level of detail contemplated by FED. R. CIV. P. Rule 9(b). This
2:00 PM
detail is all the more important when, as is the case here, Plaintiffs appear to be alleging a contract was formed in January 2007 and that Plaintiffs were still making payments to Debtor in December 2015. Here, the complaint paints a very unclear picture of the material facts.
The Court, on this record, declines to address Debtor’s argument that Plaintiff Elizabeth Balderas lacks standing to bring this claim because the operative complaint requires substantial amendment. The Court also notes that any request for a money judgment must contain a clear articulation of the non-bankruptcy legal basis for the underlying claim.
The Court is inclined to GRANT the motion and DISMISS the complaint without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Defendant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Movant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
2:00 PM
Plaintiff(s):
Elizabeth Balderas Represented By John F Bazan
Jose Carrillo Represented By
John F Bazan
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01141 Balderas et al v. Valderrama
Also #26 EH
Docket 1
- NONE LISTED -
Debtor(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Defendant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Plaintiff(s):
Elizabeth Balderas Represented By John F Bazan
Jose Carrillo Represented By
John F Bazan
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Adv#: 6:18-01093 Negrete Manrriquez v. BEAR STEARNS RESIDENTIAL MORTGAGE
and/or successors, JP Morgan Chase Bank, SPS Select Portfolio Servicing, Inc.. (Fee Not Required). (Attachments: # 1 COMPLAINT - EXHIBIT 1 # 2 COMPLAINT - EXHIBIT 2 (part 1) # 3 COMPLAINT - EXHIBIT 2 (part 2) # 4 COMPLAINT - EXHIBIT 2 (part 3) # 5 COMPLAINT - EXHIBIT 3) Nature of Suit:
72 - Injunctive relief - other, 91 - Declaratory judgment From: 6/28/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Defendant(s):
BEAR STEARNS RESIDENTIAL Pro Se
JP Morgan Chase Bank Pro Se
SPS Select Portfolio Servicing, Inc. Represented By
Nancy L Lee
Plaintiff(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles Timothy D Murphy
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01153 Hutton v. WELLS FARGO BANK, N.A. et al
EH
Docket 6
- NONE LISTED -
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt Patricia Rodriguez
Defendant(s):
WELLS FARGO BANK, N.A. Represented By
Lynette Gridiron-Winston
Clear Recon Corp. Pro Se
DOES 1 through 10, inclusive Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By
Lynette Gridiron-Winston
Plaintiff(s):
Lenton T. Hutton Represented By Patricia Rodriguez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01153 Hutton v. WELLS FARGO BANK, N.A. et al
Also #2 EH
Docket 1
- NONE LISTED -
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt Patricia Rodriguez
Defendant(s):
WELLS FARGO BANK, N.A. Represented By
Lynette Gridiron-Winston
Clear Recon Corp. Pro Se
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
Lenton T. Hutton Represented By Patricia Rodriguez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 EH
Docket 63
On March 18, 2017, Irma Cantu ("Debtor") filed a Chapter 13 voluntary petition. On June 15, 2018, Debtor’s Chapter 13 plan was confirmed.
Three days later, Trustee filed a motion to dismiss for failure to submit tax returns or refunds. Debtor did not file an opposition to the motion. After no appearance was made on behalf of Debtor at the motion to dismiss, the case was dismissed on July 25, 2018.
The day before the case was formally dismissed, Debtor filed a motion to vacate a dismissal order which did not yet exist. On July 25, 2018, Trustee filed comments indicating conditional approval of the motion.
11:00 AM
Debtor relies on FED. R. CIV. P. Rule 60(b)(1), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect."
The legal basis for Debtor’s assertion that the dismissal order should be vacated is that Debtor’s counsel inadvertently did not appear at the hearing due to an office error. It is well established, however, that "an attorney’s ignorance and carelessness does not provide grounds for Rule 60(b) relief." In re Mercado, 144 B.R. 879, 886 (Bankr.
C.D. Cal. 1992) (citing Bershad v. McDonough, 469 F.2d 1333, 1337 (7th Cir. 1972). And the mere assertion that counsel did not fulfill its duties, but that such carelessness was inadvertent, is clearly inadequate to support Rule 60(b) relief. See, e.g., In re ACME Motors, Inc., 125 B.R. 702, 703 (Bankr. D.R.I. 1991).
"Rule 60(b) relief is extraordinary." Id. Yet, in this court, a request for relief from a Chapter 13 dismissal order has become ordinary. On occasion, the requests are legally sound. Here, however, the evidence provided simply indicates that Debtor’s counsel did not attend the hearing for reasons that are unclear or unstated.
The Seventh Circuit has stated that:
he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds. The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances.
11:00 AM
Bakery Mach. & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009). "Although attorney carelessness can [in certain circumstances] constitute ‘excusable neglect’ under Rule 60(b)(1), attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent behavior may have on a litigant." Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004) (collecting cases).
The Court is inclined to GRANT the motion conditioned on compliance with the Trustee’s conditions.
APPEARANCES REQUIRED.
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Movant(s):
Irma Dalia Cantu Represented By Leonard J Cravens Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/4/18 Also #4
EH
Docket 24
- NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Movant(s):
Irma Dalia Cantu Represented By Leonard J Cravens Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 50
The Debtor filed her case on August 10, 2017. The Debtor’s chapter 13 plan was confirmed on September 21, 2017. The Debtor became delinquent on her payments and a motion to dismiss was filed by the Trustee on June 19, 2018. Subsequently, the Debtor filed a Motion to Modify Plan on June 22, 2018. The Trustee filed comments recommending approval of the Motion.
The hearing on the Trustee’s Motion to Dismiss was continued for the Debtor to lodge an order and finalize the Motion to Modify. The Debtor asserts that an order on the Motion was lodged on July 26, 2018. No order was entered on the docket. The Debtor and her counsel failed to appear at the continued hearing on the Trustee’s Motion to Dismiss.
Based on the failure to lodge an order on the MMP and the failure to appear at the continued hearing, the Court dismissed the case.
The Debtor now seeks an order vacating the dismissal. In support the Debtor has provided a copy of the confirmation received on lodgment of the order and requests that the dismissal be vacated as resulting from a clerical error.
The Trustee responds that the Debtor has proffered no excuse for the nonappearance
11:00 AM
at the continued hearing on the Motion to Dismiss.
The docket reflects that the Debtor failed to comply with LBR 9013-1(o)(3) which requires the filing of a declaration of service and non-opposition for matter set on negative notice (such as the Debtor’s MMP). The Court’s internal records further reflect that the Court rejected the Debtor’s lodged order on 7/26/2018 at 11:19 a.m. An email notification of unused order was sent to the Debtor’s counsel at the CM/ECF email, rebecca@saunderslawoffice.com.
Notwithstanding these facts, the Court is inclined to GRANT the Motion provided that the Debtor can comply with the Trustee’s conditions. Additionally, as the record demonstrates that the case was dismissed as a result of counsel’s negligence, Debtor’s counsel shall not receive fees for the Motion to Vacate.
APPEARANCES REQUIRED.
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Movant(s):
Cindy Louise Lawson Represented By Gary S Saunders Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Robin M. Lee Represented By
Sundee M Teeple
Joint Debtor(s):
Catherine Y Christ Represented By Sundee M Teeple
Movant(s):
Robin M. Lee Represented By
Sundee M Teeple Sundee M Teeple Sundee M Teeple
Catherine Y Christ Represented By Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/28/18 EH
Docket 113
- NONE LISTED -
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 47
On January 10, 2018 ("Petition Date"), Belen Rubio ("Debtor") filed for chapter 13 relief. On July 30, 2018, Debtor filed Objection to Claim # 8 (the "Objection") of LVNV Funding, LLC ("Claimant"). Service was proper and no opposition or response has been filed.
Debtor’s sole objection is that LVNV has not demonstrated sufficient evidence of its standing to seek payment on the claim.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby
11:00 AM
giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Debtor asserts that LVNV’s claim must fail because there is insufficient evidence of the original assignment from WebBank to Prosper Marketplace Inc., and subsequently to LVNV. Here, the Debtor’s schedules provide evidence in support of Prosper’s claim because the Debtor’s listed Prosper in their Schedules and the date the account was opened corroborates the facts in the filed Proof of Claim. Based on these facts, the Debtor’s Objection fails to negate the allegation of the Claim that WebBank transferred the claim to Prosper. As to the transfer from Prosper to LVNV, the Claim provides documentation signed under penalty of perjury that Prosper transferred its Claim to LVNV.
For the foregoing reasons, the Court is inclined to OVERRULE the Debtor’s
11:00 AM
Objection.
APPEARANCES REQUIRED.
Debtor(s):
Belen L. Rubio Represented By Christopher J Langley
Movant(s):
Belen L. Rubio Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 20
- NONE LISTED -
Debtor(s):
Latoya Joy Armstrong Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 41
- NONE LISTED -
Debtor(s):
Michael Anthony Rivera Represented By Michael A Rivera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Jeremiah Johnson Nellis Represented By Carey C Pickford
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
Juan Aguilera Represented By A Mina Tran
Movant(s):
Juan Aguilera Represented By A Mina Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 31
On April 11, 2018 ("Petition Date"), James and Jodie Hall (collectively, the "Debtors") filed their petition for chapter 13 bankruptcy.
On July 13, 2018 the Debtors filed an Objection to Claim No. 14 (the "Objection") of LVNV Funding, LLC ("Claimant"). Service was proper and no opposition has been filed.
The Debtors object to the claim on the grounds that it is barred by the applicable statute of limitations.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP
11:00 AM
9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Rebuttal of the Prima Facie Proof of Claim
In this case, the Debtors assert that the Claim should be disallowed as time barred.
Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. The statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal.
App. 2004).
11:00 AM
Here, the Debtors assert that Claimant’s documentation indicates a last transaction between the Debtor and original creditor took place on February 15, 2018, and that the Claimant charged off the account on October 31, 2008. Based on these facts, the Debtors have established that over four years have already lapsed since the last item in the account. Thus, the burden to show the validity of Claim No. 14 must shift to Claimant. Claimant, however, though properly served, has failed to respond, which may be deemed as consent to the relief requested under LBR 9013-1(h). Thus, as the ultimate burden of persuasion remains on the Claimant, the Objection must be sustained.
The Objection is SUSTAINED. Claim #14 is disallowed in its entirety.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
James Owen Hall Jr Represented By Dana Travis
Joint Debtor(s):
Jodie Beryl Hall Represented By Dana Travis
Movant(s):
James Owen Hall Jr Represented By Dana Travis Dana Travis
Jodie Beryl Hall Represented By Dana Travis
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #16 EH
Docket 48
On April 20, 2018, Ridge Robert ("Debtor") filed his petition for chapter 13 relief. Among the assets of the estate is a 2013 Toyota Camry (the "Camry"). On July 3, 2018, the Debtor filed his Motion to Value the Camry ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtor asserts that the Camry’s value, and thus its secured portion, should be determined to be $6,600, with an unsecured deficiency claim for $2,366. In support the Debtor has attached a copy of the Kelly Blue Book. However, the copy of the Kelly Blue Book printout attached to the Motion does not indicate pertinent facts of the Camry such as the make and model of the vehicle necessary to corroborate the
11:00 AM
Debtor’s assertion of value.
Finally, as to service, Wells Fargo was not properly served via FRBP 7004 to the attention of an officer and was also not served at the PO Box requested for bankruptcy-related notices on its proof of claim.
TENTATIVE RULING
The Court is inclined to CONTINUE the Motion for a hearing on August 30, 2018, at 11:00 a.m. for Debtor to provide supplemental documentation to corroborate the assertion of value as set forth above and for the Debtor to re-serve the Motion and supplemental documentation on Wells Fargo as indicated above. The deadline to file and serve the supplemental documents is August 9, 2018.
APPEARANCES WAIVED. Movant to file and serve notice of the continuance, a copy of the Motion, and supplemental documentation per the Court’s instructions.
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Movant(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Also #15 EH
Docket 0
- NONE LISTED -
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 14
- NONE LISTED -
Debtor(s):
Miguel Santa Maria Represented By Todd L Turoci
Joint Debtor(s):
Lilia Maldonado Represented By Todd L Turoci
Movant(s):
Miguel Santa Maria Represented By Todd L Turoci
Lilia Maldonado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Fatana Aziz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Antoine Hossein Babai Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Henry M Gutierrez Represented By Luke Jackson Nima S Vokshori
Joint Debtor(s):
Mitzy D Gutierrez Represented By Luke Jackson Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anthony Lamar Riley Represented By Dana Travis
Joint Debtor(s):
Shannon Marie Riley Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Philip Salazar Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Victoria A Idzardi Represented By Paul Y Lee
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Arcy B Gonzales Represented By Laleh Ensafi
Joint Debtor(s):
Margarita B Gonzales Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Everett T Cain Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marnie Deanne Barnhart Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Peter Ruiz Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Meisland Represented By Luke Jackson Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Amanda E Curry Represented By Andy C Warshaw
Joint Debtor(s):
Matthew L Curry Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gregory W. Thomas Represented By
James D. Hornbuckle
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jun Li Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adonis Francisco Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Bogdis Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alexander Joo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Louis E Thomas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sussan Onyeyiriuche Represented By Joel M Feinstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bessie Johnson Desroches Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Macias Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rosalinda Angelita Miranda Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramiro Marquez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lisa Conway Represented By
Douglas E Klein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gilberto Oliden Represented By Lauren M Foley
Joint Debtor(s):
Irma Maria Oliden Represented By Lauren M Foley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Victor H Saravia Represented By Julie J Villalobos
Joint Debtor(s):
Deborah A Saravia Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Erika Ramirez Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Manuel Geronimo Rodriguez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alejandro Guillen Represented By Neil R Hedtke
Joint Debtor(s):
Karla Guillen Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 282
- NONE LISTED -
Debtor(s):
Fernando Rodriguez Represented By Tamar Terzian
Joint Debtor(s):
Gabriela Rodriguez Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Rosalie Estella Crouch Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 225
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 59
- NONE LISTED -
Debtor(s):
Joe Martinez Jr. Represented By David Lozano
Joint Debtor(s):
Sandra Lynette Martinez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 125
- NONE LISTED -
Debtor(s):
Jonathan William Nicastro Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Laurie L Burns Represented By Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Juan Figueroa Represented By
Inez Tinoco-Vaca
Joint Debtor(s):
Nancy Figueroa Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 78
- NONE LISTED -
Debtor(s):
Bradly Scott Aduddell Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 113
- NONE LISTED -
Debtor(s):
Tanyua A Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Isaias Melo Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosa Melo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 88
- NONE LISTED -
Debtor(s):
Rick Gaeta Carreon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 93
- NONE LISTED -
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 26
- NONE LISTED -
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 100
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Jose R. Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Miriam L Castaneda Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 61
- NONE LISTED -
Debtor(s):
Clarice Morris Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #66 EH
Docket 57
- NONE LISTED -
Debtor(s):
Clarice Morris Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Stephanie Lobato Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
- NONE LISTED -
Debtor(s):
Ernesto Ayon Lopez Represented By
James Geoffrey Beirne
Joint Debtor(s):
Dolores Millan Sanchez Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Shane Morgan Represented By Christopher Hewitt
Trustee(s):
Charles W Daff (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 22
- NONE LISTED -
Debtor(s):
Violeta Perola Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
Deborah Thomas Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 25
- NONE LISTED -
Debtor(s):
Maria Leticia Estrada Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 56
- NONE LISTED -
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Roberto Garcia Garcia Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Maria Martha Garcia Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 39
- NONE LISTED -
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Ertun Reshat Represented By
April E Roberts
Joint Debtor(s):
Hale Reshat Represented By
April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Leonel Villa Represented By
Luis G Torres
Joint Debtor(s):
Lucila Pineda Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
Rogelio Ramos Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Escobar Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 21
- NONE LISTED -
Debtor(s):
Jason Allen Colleasure Represented By Dana Travis
Joint Debtor(s):
Julia Ann Colleasure Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK
From: 6/26/18 EH
Docket 38
Debtor(s):
Yolanda Llamas Represented By Rebecca Tomilowitz
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 94
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶¶ 2, 3, and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Greenwood T. May Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Judy G. May Represented By
Michael Smith Sundee M Teeple
Movant(s):
U.S. Bank NA, successor trustee to Represented By
10:00 AM
Trustee(s):
Kristin A Zilberstein Merdaud Jafarnia Nancy L Lee
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: QUANTUM3 GROUP LLC
EH
Docket 53
Service is Proper Opposition: None
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Movant(s):
Quantum3 Group LLC as agent for Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 38
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from stay under § 362(d)(2) for lack of cause shown.
GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Coralia Beltran Rivas Represented By Stephen L Burton
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON TRUST NA
EH
Docket 37
Service is Proper Opposition: None
Debtor had a previous bankruptcy filing dismissed on July 3, 2017. The instant case was filed on March 27, 2018. Therefore, by operation of 11 U.S.C. § 362(c)(3)(A), the automatic stay in the instant case expired on April 26, 2018. Therefore, the Court is inclined to CONFIRM that the automatic stay is not in effect and DENY the remaining requests for relief which are not in rem requests as moot.
The Court is to GRANT relief from the automatic stay pursuant to 11 U.S.C. § 362(d)
(4) based on multiple bankruptcy filings affecting the property. Specifically, the Court notes that Debtor filed five skeletal bankruptcy petitions since 2010 which were all summarily dismissed. The Court is inclined to GRANT the request under ¶ 9 upon recording of a copy of this order or giving appropriate notice of its entry in compliance with applicable nonbankruptcy law.
APPEARANCES REQUIRED.
Debtor(s):
Robert Thomas Gonzales Represented By Brad Weil
10:00 AM
Movant(s):
WILMINGTON TRUST, NA, Represented By Jamie D Hanawalt
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 43
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 27
- NONE LISTED -
Debtor(s):
Justa Nelida Guzman Represented By Lionel E Giron
Movant(s):
The Bank of New York Mellon, et al Represented By
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
From: 8/21/18 EH
Docket 24
Service is Proper Opposition: Yes
APPEARANCES REQUIRED.
Debtor(s):
Jennifer A. Lawton Represented By Steven E Cowen
Movant(s):
PennyMac Loan Services, LLC Represented By Kelsey X Luu Jamie D Hanawalt
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
CASE DISMISSED 8/29/18
EH
Docket 15
Service is Proper Opposition: None
Due to Debtor’s previous bankruptcy filing (case no. 17-17927), pursuant to 11
U.S.C. § 362(c)(3)(A) the automatic stay in the instant case expired on July 12, 2018. Therefore, the Court is inclined to GRANT the request under ¶ 3, conforming that the automatic stay is not in effect. The Court is inclined to GRANT waiver of the Rule 4001(a) stay and GRANT relief from the § 1301(a) stay. Based on the fact that the automatic stay is no longer in effect, both because of the operation of § 362(c)(3)(A) and because the case was dismissed on August 29, 2018, the Court is inclined to DENY as moot all remaining requests for relief which are not in rem requests.
The Court is inclined to GRANT relief from the automatic stay pursuant to 11 U.S.C.
§ 362(d)(4) based on multiple recent skeletal filings affecting the property. GRANT request for relief under ¶ 10. DENY requests for relief under ¶¶ 8 and 11 for lack of cause shown.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Fatana Aziz Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
David Leo Carroll Represented By Todd L Turoci
Joint Debtor(s):
Lisa Kay Carroll Represented By Todd L Turoci
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Shannon Martha Wisniewski Represented By Daniel King
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Guillermo Villalpando Represented By Francis Guilardi
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: BANK OF THE WEST
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Kenneth Ronald Wolf Represented By Dana Travis
Joint Debtor(s):
Carol Janet Wolf Represented By Dana Travis
Movant(s):
BANK OF THE WEST Represented By
10:00 AM
Trustee(s):
Mary Ellmann Tang
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: AKSELROD BYPASS TRUST, ALEX AKSELROD, TRUSTEE
CASE DISMISSED 8/27/18
EH
Docket 11
Service is Proper Opposition: None
Because this case was dismissed on August 27, 2018, the Court is inclined to DENY as moot all requests for relief which are not in rem requests.
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
based on an unauthorized transfer of a partial interest in property around the petition date, and based on the fact that this was a skeletal bankruptcy filing. GRANT relief from Rule 4001(a) stay.
APPEARANCES REQUIRED.
Debtor(s):
Mark H Chappell Pro Se
Movant(s):
Akselrod Bypass Trust, Alex Represented By Yevgeniya Lisitsa
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
Docket 14
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Movant(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
2:00 PM
Also #16 EH
Docket 49
On March 7, 2018, Rick’s Patio Inc. ("Debtor") filed a Chapter 11 voluntary petition. On May 5, 2018, the Court approved the application to employ Rosenstein & Associates as counsel.
At the original case management conference on April 24, 2018, the Court adopted the proposed deadline of July 30, 2018, for the filing of a disclosure statement and plan of reorganization. The case management conference was continued to July 31, 2018, the first date after the proposed deadlines. Debtor did not comply with the deadlines, and did not file the scheduling order prior to the continued case management conference.
On August 3, 2018, the scheduling order was entered, setting a deadline of July 30, 2018, to file and serve the disclosure statement and Chapter 11 plan. On August 10, 2018, Debtor filed its disclosure statement and Chapter 11 plan, as well as a motion to extend time to file disclosure statement and plan.
2:00 PM
Debtor asserts that "[a] close analogy to the current situation can be found in the exclusive period allowed for chapter 11 debtors to file their own plans, a period which courts may extend or reduce for cause." [Dkt. No. 49, pg. 4, lines 22-25]. Debtor then recites a list of factors it argues the Court should consider when weighing the motion.
The Court declines to adopt Debtor’s proposed "for cause" standard because it is incompatible with the Federal Rules of Bankruptcy Procedure. FED. R. BANKR. P. Rule 9006(b)(1) states:
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
Therefore, FED. R. BANKR. P. Rule 9006(b)(1) imposes a for cause standard when the request for extension is made before the deadline has passed, and an excusable neglect standard when the request is made after the fact. Here, Debtor filed the motion for extension eleven days after the deadline has passed. Therefore, Debtor has recited the incorrect legal standard. Debtor has not attempted to argue or meet the excusable neglect standard and, as a result, the standard has not been met.
2:00 PM
The Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
EH
Docket 50
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
11:00 AM
Docket 12
Debtor(s):
Lorena Mora Huante Pro Se
Movant(s):
Lorena Mora Huante Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
From: 8/29/18 EH
Docket 86
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
11:00 AM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
From: 2/28/18, 3/21/18, 4/11/18, 6/13/18, 8/22/18, 8/29/18
EH
Docket 29
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
Trustee(s):
Charles W Daff (TR) Represented By
11:00 AM
Lynda T Bui Brandon J Iskander Rika Kido
2:00 PM
Adv#: 6:18-01102 PRINGLE v. Capital One Bank (USA), National Association
U.S.C. § 544(b) and Cal. Civ. Code §§ 3439.04(a)(2), 3439.05; (2) Avoidance of Transfers Pursuant to 11 U.S.C. § 548(a)(1)(B); (3) Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; and (4) Disallowance of Claims Pursuant to 11 U.S.C. § 502 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer))
EH
Docket 1
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Capital One Bank (USA), National Represented By
Kevin M Eckhardt
Plaintiff(s):
JOHN PRINGLE Represented By Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:18-01147 Lloyd v. Pound
EH
Docket 1
Debtor(s):
Paul Pound Represented By
Todd L Turoci
Defendant(s):
Paul M Pound Represented By Todd L Turoci
Plaintiff(s):
April Lloyd Represented By
Chane Buck
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01150 Discover Bank v. Paradis
EH
Docket 1
Debtor(s):
Jeffrey W Paradis Represented By Daniel King
Defendant(s):
Jeffrey W Paradis Represented By Daniel King
Plaintiff(s):
Discover Bank Represented By Holly J Nolan
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
Also #8 EH
Docket 65
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Movant(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/20/17, 2/7/18, 3/7/18, 8/15/18 Also #7
EH
Docket 1
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Docket 4
Debtor(s):
John Ryan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 90
9/11/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and GRANT order designating Debtor as "borrower" under Cal. Civil Code § 2920.5. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Manuel Sandoval Gonzalez Represented By Dana Travis
Joint Debtor(s):
Andrea Michelle Gonzalez Represented By Dana Travis
10:00 AM
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Angie M Marth Kelsey X Luu
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 52
09/11/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Donald John Hanson Represented By Manfred Schroer
Joint Debtor(s):
Mary Merzella Hanson Represented By Manfred Schroer
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
10:00 AM
Trustee(s):
Jennifer H Wang
Rod Danielson (TR) Pro Se
10:00 AM
Riverside, California 92505
MOVANT: CHAMPION MORTGAGE COMPANY (NATIONSTAR MORTGAGE LLC, DBA)
From: 6/26/18, 7/31/18 EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Suzanne Berry Represented By Christopher Hewitt
Movant(s):
Champion Mortgage Company Represented By Ashlee Fogle Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 35
- NONE LISTED -
Debtor(s):
Joan Eleanor Demiany Represented By Jenny L Doling
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 6/6/18 EH
Docket 59
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request for relief from the co-debtor stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and GRANT order designating Debtor as "borrower" under Cal. Civil Code § 2920.5. DENY request pursuant to § 362(d)(2) for lack of cause shown and DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALTA VISTA CREDIT UNION
EH
Docket 44
- NONE LISTED -
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Movant(s):
Alta Vista Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION
From: 6/13/18, 8/28/18 EH
Docket 10
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
Seterus, Inc. as the authorized Represented By Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 27
- NONE LISTED -
Debtor(s):
Percylyn Agustin Basa Represented By Benjamin R Heston
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Angie M Marth
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL HOME LOAN MORTGAGE CORPORATION
EH
Docket 10
09/11/2018
Service: Proper Opposition: Yes
The Debtor asserts he received insufficient notice. Specifically, he asserts he first knew about the Motion for relief from stay on 8/22/2018 when the Movant’s counsel informed the Superior Court in the UD Action that a hearing would be happening on September 11, 2018. Debtor asserts he was denied a copy of the Motion when he requested it from the Movant but that he since obtained a copy of the Motion from the clerk’s office on 8/24/18.
As to notice and service of the Motion, the Court’s procedures permit Motions for Relief From Stay to pursue Residential Unlawful Detainer actions to be served not later than 5 court days prior to the date of the hearing with telephonic notice. Here, the Debtor admits that he had actual notice and a copy of the Motion more than 5 court days before the hearing. For these reasons, the Court finds that notice and service were sufficient under the circumstances. Moreover, the Mailbox rule and Movant’s proof of service support that the Debtor was served.
The Debtor goes on to assert that the Movant is not the "Legal Title Owner" and/or that Movant has not complied with California law in foreclosing.
10:00 AM
As a threshold matter, a motion for stay relief is a summary proceeding. In re Santa Clara County Fair Ass'n, Inc., 180 B.R. 564 (9th Cir.BAP (Cal.) 1995) (citing In re Computer Communications, Inc., 824 F.2d 725, 729 (9th Cir.1987)). In a summary proceeding, the court's discretion is broad. Courts may consider the factor of judicial economy when deciding lift stay issues. Id.
The only triable issues in a Motion for Relief from Stay are (1) lack of adequate protection; (2) the debtor's equity in the property; and (3) the necessity of the property to an effective reorganization of the debtor, or (4) the existence of other cause for relief from the stay. In re Computer Communications, Inc., 824 F.2d 725, 729.
Here, the issues and defenses surrounding the validity of the underlying foreclosure do not directly relate to the lifting of the stay, and accordingly they are not issues that are before the bankruptcy court. The irregularities raised by the Debtor are more properly considered by a state court in the determination of an unlawful detainer action. For purposes of the bankruptcy court’s summary consideration of the Motion, the Court finds that the Trustee’s Deed Upon Sale presented by Movant is adequate to confer standing to Movant and establish that a "colorable claim" exists, and the Debtor, for his part, has not provided any cognizable evidence or argument that the Property holds any value that would be beneficial to the estate or its creditors. Tellingly, the Chapter 7 trustee has filed no opposition to the Motion despite having received regular notice and an opportunity to file opposition.
Based on the foregoing, the Court finds that the Movant has established cause for relief from the automatic stay to pursue its Unlawful Detainer action in State Court and the Debtor is free to pursue any and all defenses available to him under state law in that action.
APPEARANCES REQUIRED.
Debtor(s):
Gary Valbuena Pro Se
Movant(s):
Federal Home Loan Mortgage Represented By
10:00 AM
Trustee(s):
Agop G Arakelian
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: ACAR LEASING LTD
EH
Docket 8
09/11/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Derek Lansdale Represented By Julie J Villalobos
Joint Debtor(s):
Kimberly Diane Lansdale Represented By Julie J Villalobos
Movant(s):
ACAR Leasing LTD d/b/a GM Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 12
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Francisco Parra Represented By
Jessica De Anda Leon
Movant(s):
Bank of America, N.A. Represented By Megan E Lees
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 16
09/11/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Adrio Soedarmo Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Yolanda Soedarmo Represented By
Ethan Kiwhan Chin
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 15
09/11/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request as to § 362(d)(1) for lack of cause shown.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Michael James Watts Represented By Julie J Villalobos
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WESCOM CREDIT UNION
EH
Docket 10
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and § 362(d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rogelio Hernandez Delgado Represented By Robert G Uriarte
Movant(s):
Wescom Credit Union Represented By Karel G Rocha
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 15
Tentative Ruling 09/11/18
The Movant failed to check either box 6 or 7 indicating to the Debtor the timeline for response to the Motion. Additionally, the Movant did not check the basis for relief (i.e. (d)(1) or (d)(2) in the prayer for relief).
The primary issue, however, is that the Debtor filed a change of address on the Court’s docket on August 17, 2018, only 3 days following the filing of the Motion. Based on the timing of the Debtor’s change of address and in order to ensure due process, the Court is inclined to DENY the Motion without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Rachael Dene Thomas Pro Se
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 9
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT pursuant to ¶¶ 3 and 12 of prayer for relief. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
James Ralph Albano Represented By Derik N Lewis
Movant(s):
U.S. Bank National Association, as Represented By
Angie M Marth
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
10:00 AM
MOVANT: JAVIER ORTEGA
EH
Docket 12
09/11/18
The Debtor’s evidence establishes that the dismissal of the prior case is excusable and that the instant case was not filed in bad faith. However, the Debtor asserts he is seeking to avoid foreclosure and failed to serve the secured lender on his residence via FRBP 7004(h).
APPEARANCES REQUIRED.
Debtor(s):
Javier Ortega Represented By
Alon Darvish
Movant(s):
Javier Ortega Represented By
Alon Darvish Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: OLIVIA LOPEZ
EH
Docket 34
09/11/18
The Debtor has explained that the prior dismissal for failure to submit tax returns was due to a misunderstanding on the part of the Debtor regarding her obligation to file returns. However, there is no indication whether the Debtor has now remedied and filed her 2017 return. Additionally, the Debtor’s Notice and Motion identify Troia Realty LLC as the primary party entitled to notice of the Motion. However, the proof of service fails to indicate that Troia Realty LLC was served.
APPEARANCES REQUIRED.
Debtor(s):
Olivia Lopez Represented By
William Radcliffe
Movant(s):
Olivia Lopez Represented By
William Radcliffe William Radcliffe
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: GABRIEL CRUZ
EH
Docket 11
09/11/2018
Service of the Motion was proper. The Debtor has demonstrated that his prior case was dismissed for failure to make plan payments after the Debtor lost his employment. The Debtor has provided evidence that he is has new employment and is able to propose a chapter 13 plan in good faith. Based on these facts, the Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Movant(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: WELLS FARGO BANK, N.A.
From: 7/24/18, 8/21/18 EH
Docket 71
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶ 2,3, and 12.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Wells Fargo Bank, N.A. Represented By Austin P Nagel
2:00 PM
EH
Docket 45
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 5/8/18, 8/21/18 Also #21
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
10:00 AM
EH
Docket 18
- NONE LISTED -
Debtor(s):
Boyd Eugene Givens Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Jennifer Monique Devore-Garcia Represented By
Daniel King
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Lance Davis Represented By
Terrence Fantauzzi
Joint Debtor(s):
Cesar Castaneda Represented By Terrence Fantauzzi
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Lance Davis Represented By
Terrence Fantauzzi
Joint Debtor(s):
Cesar Castaneda Represented By Terrence Fantauzzi
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Reva Mae Scott Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
EH
Docket 7
- NONE LISTED -
Debtor(s):
An Quoc To Represented By
Rex Tran
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 150
- NONE LISTED -
Debtor(s):
Richard C Cox Jr Represented By Summer M Shaw
Movant(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
Trustee(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
11:00 AM
From: 8/15/17, 9/18/17, 10/18/17, 11/13/17, 11/27/17,1/18/18, 3/21/18
EH
Docket 135
Based on the Chapter 7 Trustee's Notice and Request that Order of Civil Contempt be Vacated and Discharged, the Court is inclined to DISCHARGE the OSC and this matter off calendar.
APPEARANCES WAIVED.
Debtor(s):
Matthew Joseph Pautz Represented By Todd L Turoci Julie Philippi
Joint Debtor(s):
Alice Louise Pautz Represented By Todd L Turoci Julie Philippi
Trustee(s):
Karl T Anderson (TR) Represented By Leonard M Shulman Melissa Davis Lowe Samuel J Romero
11:00 AM
Docket 82
9/12/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 564.72 Trustee Expenses: $ 197.88
Attorney Fees: $ 6,134.90 Attorney Costs: $ 804.69
Accountant Fees: $ 1,630.50 Accountant Expenses: $245.80
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Bernard Joseph O'Kelly Represented By Brian J Soo-Hoo
11:00 AM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Rika Kido
11:00 AM
Adv#: 6:17-01156 Daff v. Fabrigas, Jr.
From: 2/28/18, 3/21/18, 4/11/18, 6/13/18, 8/22/18, 8/29/18, 9/5/18
EH
Docket 29
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Defendant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Fernando Fabrigas, Jr. Represented By Kevin Tang
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
11:00 AM
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
11:00 AM
From: 8/29/18, 9/5/18 EH
Docket 86
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander Rika Kido
11:00 AM
EH
Docket 16
- NONE LISTED -
Debtor(s):
Bon Vyrak Chea Represented By Chris A Mullen
Joint Debtor(s):
Somaly Leca Chea Represented By Chris A Mullen
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
From: 7/10/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01132 Marquez v. Amini
Docket 9
On March 5, 2018, Jordan Amini ("Debtor") filed a Chapter 7 voluntary petition.
On June 11, 2018, Gustavo Marquez ("Plaintiff") filed a complaint against Debtor for non-dischargeability pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6).
On August 22, 2018, Debtor filed a motion to dismiss for failure to state a claim. On August 30, 2018, Plaintiff filed its opposition.
MOTION TO DISMISS STANDARD
2:00 PM
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
NON-DISCHARGEABILITY STANDARD
As a preliminary note, the Court notes that Debtor’s motion to dismiss was not served at all. The Court also notes that the proof of service for Plaintiff’s opposition to motion to dismiss was in an incorrect pdf format, yet Plaintiff did not remedy the deficiency after receiving a notice to filer.
11 U.S.C. § 523(a)(2)(A) and (a)(6) state:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
The elements of a § 523(a)(2)(A) claim are well-established: (a) the debtor made
2:00 PM
representations; (b) which were known to be false; (c) the representations were made with the intention and purpose of deceiving the creditor; (d) the creditor relied on such representations; (e) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
As implicitly noted by Debtor, FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)
(A) non-dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008). "In order to properly plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." Id.
The Court disagrees with Debtor that the complaint at issue fails to plead a cause of action pursuant to § 523(a)(2)(A) with sufficient particularity. While the general allegations section of the complaint only contains general recitations of a misleading scheme that do not have any particular relationship to Plaintiff, Plaintiff has incorporated the state court complaint by reference. Paragraphs 6 and 7 of the state court complaint contain a detailed description of the allegedly false or fraudulent statements made by Debtor1, and ¶¶ 18-22 of the state court complaint sufficiently allege the elements of a § 523(a)(2)(A) claim.2
To prevail on a claim under § 523(a)(6), a creditor must demonstrate three elements:
(1) willful conduct; (2) malice; and (3) causation. See In re Butcher, 200 B.R. 675, 680 (Bankr. C.D. Cal. 1996) (quoting In re Apte, 180 B.R. 223, 230 (B.A.P. 9th Cir. 1995)). A willful injury is a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). "A malicious injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008) (quoting In re Jercich, 238 F.3d 1202, 1209 (9th Cir. 2001)).
Here, Debtor has not raised a coherent legal argument with respect to the claim for relief pursuant to § 523(a)(6), although the Court surmises that Debtor generally disagrees with the allegations. Nevertheless, it is unclear what or which elements of a
§ 523(a)(6) cause of action Debtor believes have not been satisfied here; a review of the state court complaint reveals allegations which are adequate to allege each of the above recited elements. Specifically, Plaintiff has alleged a deliberate or intentional
2:00 PM
wrongful act which necessarily produced harm without just cause or excuse.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Jordan Halston Amini Pro Se
Defendant(s):
Jordan Halston Amini Pro Se
Movant(s):
Jordan Halston Amini Pro Se
Plaintiff(s):
Gustavo Marquez Represented By Curtis M King
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Adv#: 6:18-01127 Tarhuni v. Lakeview Loan Servicing, LLC et al
From: 8/23/18 EH
Docket 10
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing, LLC Represented By Jonathan C Cahill
FNF Servicing Inc Pro Se
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs
Janaya Carter Represented By
Jennifer Needs
LoanCare, LLC Represented By Jonathan C Cahill
Zieve, Brodnax & Steele, LLP Represented By
11:00 AM
Movant(s):
Jennifer Needs
Les Zieve Represented By
Jennifer Needs
John Steele Represented By
Jennifer Needs Jennifer Needs
Janaya Carter Represented By
Jennifer Needs Jennifer Needs
Zieve, Brodnax & Steele, LLP Represented By Jennifer Needs
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/30/18 EH
Docket 41
- NONE LISTED -
Debtor(s):
Jeremiah Johnson Nellis Represented By Carey C Pickford
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/19/18, 8/23/18 EH
Docket 45
- NONE LISTED -
Debtor(s):
Juan Rene Fullen Jr. Represented By Luis G Torres
Movant(s):
Nationstar Mortgage LLC Represented By Brandye N Foreman Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 166
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 200
On August 2, 2016, Edward & Georgia Zozaya ("Debtors") filed a Chapter 13 voluntary petition. On September 15, 2016, Debtors’ Chapter 13 plan was confirmed.
On December 16, 2016, Wells Fargo Bank ("Creditor") filed a proof of claim for a secured claim in the amount of $321,681.25 ("Claim 8"). Claim 8 appears to include
$22,923.99 in prepetition arrears. Subsequently, there were four notices of mortgage payment change. On July 26, 2018, the Court entered an order on Debtor’s motion for authority to enter into loan modification [Dkt. No. 195]. The order stated, in part:
Debtor(s) shall file a motion to modify their Plan and amended Schedules I and J to properly treat any arrears or change in mortgage payment that results from a final loan modification;
Debtor(s) must address in the motion to modify whether any further payments are to be made through the plan on mortgage arrears altered by the
11:00 AM
modification; and
Debtor(s) shall also object to any claim for the mortgage arrears or obtain an amended proof of claim within 30 days of a final loan modification
On August 6, 2018, Debtors filed an objection to Claim 8. Debtors assert that the loan modification eliminated the existing arrears
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a
11:00 AM
preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
Here, the Debtors have not presented evidence that the loan modification has been finalized.
The Court notes that the order authorizing entry into a loan modification program also contemplated amended schedules and a motion to modify plan. Debtors have not taken either of those steps at present. It appears that the relief requested by Debtors requires a motion to modify plan.
The Court is inclined to OVERRULE the objection.
APPEARANECS REQUIRED.
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By
11:00 AM
Movant(s):
Dana Travis
Edward Edmund Zozaya Represented By Dana Travis
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 73
- NONE LISTED -
Debtor(s):
Juan Aguilera Represented By A Mina Tran
Movant(s):
Juan Aguilera Represented By A Mina Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Movant(s):
John D Castro Jr Represented By Chris A Mullen
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 44
On March 6, 2018, Raymond & Estela Burrola ("Debtors") filed a Chapter 13 voluntary petition. On May 30, 2018, Debtors’ Chapter 13 plan was confirmed.
On June 19, 2018, Chrysler Capital ("Creditor") filed an unsecured proof of claim in the amount of $18,960.42 ("Claim 13"). On August 3, 2018, Debtors filed an objection to Claim 13. Debtors argue that Claim 13 should be disallowed as untimely.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223
11:00 AM
F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b)(9) provides:
Except as provide in subsections (c)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that –
11:00 AM
(9) proof of such claim is not timely filed, except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) of this title or under the Federal Rules of Bankruptcy Procedure, except that a claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for relief or such later time
as the Federal Rules of Bankruptcy Procedure may provide, and except that in a case under chapter 13, a claim of a governmental unit for a tax with respect to a return filed under section 1308 shall be timely if the claim is filed on or before the date that is 60 days after the date on which such return was filed as required.
Here, the claims deadline was May 15, 2018. None of the enumerated exceptions being applicable to the instant situation, Creditor’s Claim 13 was filed untimely. Therefore, the Court will sustain the objection.
The Court is inclined to SUSTAIN the objection as DISALLOW Claim 13 as untimely.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Raymond Burrola Represented By Elena Steers
Joint Debtor(s):
Estela Burrola Represented By Elena Steers
11:00 AM
Movant(s):
Raymond Burrola Represented By Elena Steers
Estela Burrola Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 124
On November 21, 2013, Jose & Hiliana Castellanos ("Debtors") filed a Chapter 7 voluntary petition. Debtors previously received a discharge in a Chapter 7 proceeding on October 21, 2010. As such, Debtors were ineligible for a discharge in the instant case.
On December 17, 2013, Debtors converted their case to Chapter 13. On December 24, 2013, Debtors filed a motion to avoid liens pursuant to § 506(d). The motion requested that the second and third liens on Debtors’ principal residence, held by Bank of America and Excel National Bank, respectively be avoided conditioned upon "receipt of a chapter 13 discharge." On March 10, 2014, the Court granted the relief sought in the motion.
On June 6, 2018, the Chapter 13 trustee filed his final report. On July 3, 2018, Debtors filed a motion for leave to file new order on Debtors’ motion to avoid junior lien. On July 25, 2018, Debtors re-filed the motion, and the matter was set for hearing.
11:00 AM
Debtors appear to argue that 11 U.S.C. § 105 provides the basis for the relief requested FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED.
R. BANKR. P. Rule 9024, however, provides the mechanism whereby a party can seek relief from a final order. Pursuant to FED. R. CIV. P. Rule 60(c)(1), however, Debtors are time-barred from bringing an argument under FED. R. CIV. P Rule 60(b)(1)-(3). Therefore, the only applicable bases for relief are FED. R. CIV. P. Rule 60(b)(4)-(6).
The motion filed by Debtors does not provide adequate information to allow the Court to apply the applicable legal framework, even if the Court were to construe the motion as requesting relief pursuant to an appropriate legal provision.
Furthermore, in light of this Court’s ruling in In re Washington, 587 B.R. 349 (Bankr.
C.D. Cal. 2018), permitting Debtors to amend their motion at the end of their case would be prejudicial to creditors and would open up a legal loophole. Pursuant to In re Washington, the Debtors may be required to pay the claims of the contingently avoided lienholders through the Chapter 13 plan pro rata with other unsecured creditors. Allowing Debtors to fix their own mistake, at the conclusion of the case, would allow Debtors to avoid the secured claims of the junior lienholders while avoiding paying those claims through the Chapter 13 plan, a result expressly rejected by In re Washington.
In conclusion, Debtors have failed to identify the appropriate legal provision for the relief requested, have failed to make an adequate legal showing to justify relief under a legally appropriate provision, and have requested relief which, if granted, would contravene this Court’s decision in In re Washington. For all the above reasons, the Court is inclined to DENY the motion.
11:00 AM
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Jose Castellanos Represented By Mark E Brenner
Joint Debtor(s):
Hiliana Castellanos Represented By Mark E Brenner
Movant(s):
Jose Castellanos Represented By Mark E Brenner Mark E Brenner
Hiliana Castellanos Represented By Mark E Brenner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 15
On August 3, 2018, Angela Sandoval ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2016 Honda Accord EX-L (the "Property"). On August 13, 2018, Debtor filed a motion to determine the value of the property. On August 23, 2018, Balboa Thrift & Loan ("Balboa") filed a secured claim in the amount of $26,362.90 ("Claim 4"). On August 30, 2018, Balboa filed its opposition.
Debtor’s motion contends that the value of the Property is $15,089, leaving an unsecured balance of $11,273.90. Balboa’s opposition contends that the value of the Property is $20,538.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
11:00 AM
Presently the Ninth Circuit has not established a uniform method for valuations. See In re Ayres, 2010 WL 652825 at *5 (Bankr. N.D. Cal. 2010) (collecting cases detailing vehicle valuation and describing the state of the law in the Ninth Circuit). In In re Morales, however, which this Court has previously cited with approval, it was determined that retail value should be calculated "by adjusting the Kelley Blue Book or N.A.D.A. Guide retail value for a like vehicle by a reasonable amount in light of the evidence presented regarding the condition of the vehicle or any other relevant factors." In re Morales, 387 B.R. 36, 45 (Bankr.C.D.Cal.2008).
According to the court in In re Morales, the retail values, and not the private party values, are the appropriate starting points because the text of § 506(a)(2) refers to "the price a retail merchant would charge" and does not refer to the price a private party would charge. Morales at 46.
Here, Debtor has provided a Kelly Blue Book report stating that the trade-in value of the Property is $15,043. Balboa, on the other hand, provides an (unauthenticated) Kelly Blue Book report which states that the "lending value" is $19,570 and the "typical listing price" is $21,506. Balboa proposes to take the average of the two identifies values, for reasons that are unclear. Given that Balboa has failed to properly authenticate its evidence or explain its method in arriving at its proposed figure, the Court is inclined to continue the matter for the parties to file supplements, if desired.
Finally, Balboa’s arguments as to the appropriate interest rate are not appropriately raised in an opposition to a motion to value.
Tentative Ruling:
The Court is inclined to CONTINUE the matter for the parties to file supplemental declarations or evidence.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Angela M. Sandoval Represented By
Rabin J Pournazarian
Movant(s):
Angela M. Sandoval Represented By
Rabin J Pournazarian Rabin J Pournazarian Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 38
On May 23, 2018, Jesus & Virginia Pabloff ("Debtors") filed a Chapter 13 voluntary petition. Among the assets of the estate is certain real property located at 33695 Marigold Ln., Murrieta, CA 92563, the principal residence of Debtors (the "Property"). On August 17, 2018, Debtors filed a motion to determine the value of the property.
Debtors; motion contends that the value of the Property is $420,000. Debtors’ motion appears to be an attempt to bifurcate the lien of the Internal Revenue Service into a secured claim in the amount of $17,175.04 and an unsecured claim of $145,037.39.
11 U.S.C. § 1322(b)(2) states:
11:00 AM
(b) Subject to subsections (a) and (c) of this section, the plan may –
(2) modify the rights of holders of secured claims, other than a claim secured only a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims
Here, the claim of the IRS is secured by Property, which is real property that is the debtor’s principal residence, and, therefore, Debtors cannot utilize § 1322(b)(2) to bifurcate the claim.
Because Debtors’ motion was filed for a legally impermissible basis, the Court declines to engage in the merits of a valuation which would serve no purpose.
Tentative Ruling:
The Court is inclined to DENY the motion
APPEARANCES REQUIRED.
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
11:00 AM
Movant(s):
Jesus Pabloff Represented By
Tom A Moore
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Adam Casey Addison Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Daniel W. Sargent Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Romeo Labastida Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Henry Hurtado Sr. Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Stephen Mark Caldwell Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lewis K. Chism Represented By Christopher J Langley
Joint Debtor(s):
Latoya A. Chism Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Javier Ortega Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Joint Debtor(s):
Anabely E Vargas Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Letheron Antonio May Represented By Marco A Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norberto Calalay Jimenez Represented By Christopher J Langley
Joint Debtor(s):
Araceli Corrales Jimenez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steve Jaime Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jackie May Zapata Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kalake Monisoni Toutai Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jacob Joseph Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Victoria Charis Agathakis Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cameron Hudson Represented By Stuart R Simone
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah A Neville Represented By Hayk Grigoryan
Joint Debtor(s):
Ronnie L Neville Represented By Hayk Grigoryan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wanda Gonzalez Represented By Benjamin R Heston
Joint Debtor(s):
Filiberto Marquez Gonzalez Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Michael Mason Represented By
Bryant C MacDonald
Joint Debtor(s):
Shannon Leigh Mason Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Luisa Demelo Luis Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Rodriguez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Charles Williams, III Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 282
- NONE LISTED -
Debtor(s):
Fernando Rodriguez Represented By Tamar Terzian
Joint Debtor(s):
Gabriela Rodriguez Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 275
- NONE LISTED -
Debtor(s):
Michael Anthony Clay Represented By Dana Travis
Joint Debtor(s):
Brenda Ann Clay Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 97
- NONE LISTED -
Debtor(s):
Carmen Lucya Mendez Represented By Sara E Razavi
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Rosalie Estella Crouch Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- NONE LISTED -
Debtor(s):
Delfina Ramos Hernandez Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 120
- NONE LISTED -
Debtor(s):
Michael Lee Barnes Represented By Todd L Turoci
Joint Debtor(s):
Belinda Ann Barnes Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Luis G Torres
Joint Debtor(s):
Angelica Gonzalez Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Michael Joseph Fodor Represented By Michael R Totaro Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 78
- NONE LISTED -
Debtor(s):
Bradly Scott Aduddell Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 113
- NONE LISTED -
Debtor(s):
Tanyua A Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 132
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 66
- NONE LISTED -
Debtor(s):
Isaias Melo Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosa Melo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Octavio Rubio Mata Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Michael Ray Sandoval Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Larry Patrick Egan Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Egan Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Angel Benavidez Represented By William P Mullins
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 22
- NONE LISTED -
Debtor(s):
Jose Guadalupe Sandoval Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Josephine Theobald Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Diego Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
- NONE LISTED -
Debtor(s):
Alma Barbara Ewing Represented By Steven A Alpert
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Raymond Ballejos Represented By Natalie A Alvarado
Joint Debtor(s):
Veronica Ballejos Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Santiago A. Anonical Jr. Represented By Todd L Turoci
Joint Debtor(s):
Shallee V Anonical Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
Tina M Fugitt Represented By
Stephen R Wade
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 98
- NONE LISTED -
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 56
- NONE LISTED -
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: JOSE VELASCO & LILIAN MICAELA VELASCO
EH
Docket 12
Debtor(s):
Jose Antonio Velasco Represented By Danny K Agai
Joint Debtor(s):
Lilian Micaela Velasco Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #2 EH
Docket 80
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #1 EH
Docket 78
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CALIBER HOME LOANS, INC
EH
Docket 254
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles Frederick Biehl Represented By
Daryl L Binkley - DISBARRED - Steven L Bryson
Movant(s):
Caliber Home Loans, Inc. Represented By Nancy L Lee
Trustee(s):
John P Pringle (TR) Represented By James C Bastian Jr
10:00 AM
Elyza P Eshaghi Brandon J Iskander Lynda T Bui Leonard M Shulman
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 161
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay.
GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Christopher John Helme Represented By Todd L Turoci
Movant(s):
US Bank National Association, as Represented By
Tyneia Merritt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 8/21/18 EH
Docket 31
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Eugene Alexis Padilla Represented By John F Brady
Movant(s):
Freedom Mortgage Corporation, its Represented By
Kristin A Zilberstein Merdaud Jafarnia Nancy L Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 36
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Joseph Manuel Ruiz Represented By April E Roberts
Joint Debtor(s):
Shannon Elizabeth Ruiz Represented By April E Roberts
10:00 AM
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA dba WELLS FARGO DEALER SERVICES
EH
Docket 44
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Silvia Patricia Zepeda Represented By James F Drake
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Sheryl K Ith
10:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: PACIFIC UNION FINANCIAL LLC
EH
Docket 49
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears.
APPEARANCES REQUIRED.
Debtor(s):
Leonel Villa Represented By
Todd L Turoci
Joint Debtor(s):
Lucila Pineda Represented By Todd L Turoci
Movant(s):
Pacific Union Financial, LLC Represented By Nancy L Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. NATIONAL ASSOCIATION SUCCESSOR TRUSTEE
EH
Docket 40
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT request for relief from stay pursuant to § 362(d)(4) based on multiple bankruptcies affecting the property (four filings in nine months). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Karin Olaya Represented By
Edward T Weber
Movant(s):
U.S. Bank National Association Represented By Darlene C Vigil
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
10:00 AM
MOVANT: MILESTONE FINANCIAL LLC
EH
Docket 49
Service is Proper Opposition: Yes
As a preliminary note, the Court notes that Local Rule 4001-(1)(c)(4) states that: "[a] motion for relief from the automatic stay must be filed separately from, and not combined in the same document with, any other request for relief, unless otherwise ordered by the court." Therefore, the default position is that the alternative requests made by Movant, for dismissal of the case or modification of the plan, are inappropriately brought in conjunction with a motion for relief from stay. Here, the Court is inclined to not deviate from the default position, because such requests are more appropriately heard on a Chapter 13 calendar when the Chapter 13 Trustee is present. Therefore, the Court is inclined to DENY the alternative requests for dismissal of the case or modification of the plan without prejudice.
Regarding the request for relief from the automatic stay, the Court notes that Debtor is correct in asserting that the Chapter 13 plan is a conduit plan, with payments to be made to Del Toro Loan Servicing, Movant’s servicer, through the plan. While the Court notes that the docket does not reflect that a motion to dismiss for delinquency has been filed in this case, Debtor has not provided any supporting documentation indicating that the Chapter 13 plan payments are current.
10:00 AM
Parties to discuss status of Chapter 13 plan payments and whether funds have been received by Movant and/or its loan servicer, Del Toro Loan Servicing.
APPEARANCES REQUIRED.
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
Docket 43
Service is Proper Opposition: Yes
Parties to discuss status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Antoinette Marie Tutt Represented By Brian C Miles
Movant(s):
U.S. Bank Trust National Represented By Jamie D Hanawalt
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK
EH
Docket 27
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
David Bruce Bremer Represented By Paul Y Lee
Joint Debtor(s):
Tina Marie Bremer Represented By Paul Y Lee
10:00 AM
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CATHERINE OSBORN
From: 7/31/18 EH
Docket 16
- NONE LISTED -
Debtor(s):
Gary Ray Osborn Represented By Summer M Shaw Jenny L Doling
Movant(s):
Catherine Osborn Represented By Robert S Altagen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 28
- NONE LISTED -
Debtor(s):
Harish S. Sharma Represented By Mark J Markus
Joint Debtor(s):
Neha H. Sharma Represented By Mark J Markus
Movant(s):
WELLS FARGO BANK, N.A. Represented By Jamie D Hanawalt
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: VILLAGE CAPITAL & INVESTMENT, LLC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Juan Duran Represented By
Christopher Hewitt
Movant(s):
Village Capital & Investment, LLC Represented By
Erin M McCartney
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: WESCOM CREDIT UNION
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Gregory Lee Haan Jr. Represented By Terrence Fantauzzi
Joint Debtor(s):
Yisel Haan Represented By
Terrence Fantauzzi
Movant(s):
Wescom Credit Union Represented By Karel G Rocha
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: KIA MOTORS FINANCE
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Kenneth Ronald Wolf Represented By Dana Travis
Joint Debtor(s):
Carol Janet Wolf Represented By Dana Travis
10:00 AM
Movant(s):
Kia Motors Finance Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 21
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles J. La Chapelle Represented By Patricia M Ashcraft
Joint Debtor(s):
Doris L La Chapelle Represented By Patricia M Ashcraft
10:00 AM
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
U.S.C. § 362
MOVANT: WELLS FARGO BANK NA
CASE DISMISSED 8/27/18
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(4) based on multiple bankruptcy filings (four cases since March 2015) affecting the subject real property and the fact that the instant filing was a skeletal filing which was summarily dismissed. GRANT relief from Rule 4001(a)(3) stay. DENY all remaining requests as moot because this case was dismissed on August 27, 2018.
APPEARANCES REQUIRED.
Debtor(s):
Sherry Ann Beardsley Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAB WEST LLC
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Brittany Nicole Britt Represented By Aaron Lloyd
Joint Debtor(s):
Joshua Britt Represented By
Aaron Lloyd
10:00 AM
Movant(s):
Cab West LLC Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: TERRA MADERIOS
CASE DISMISSED 9/24/18
EH
Docket 7
Service: Unclear Opposition: None
Because the case was dismissed, the Court is inclined to DENY the requests for relief from stay under § 362(d)(1) and § 1301(a) as moot, and DENY request under ¶ 2.
DENY request for relief pursuant to § 362(d)(4). Movant appears to be the owner of the subject Property and not a secured creidtor. DENY request for relief under ¶ 7 for lack of cause shown. DENY request for relief under ¶ 6 and DENY waiver of Rule 4001(a) stay.
APPEARANCES REQUIRED.
Debtor(s):
Jossue Aly Majana Pro Se
Movant(s):
Terra Maderios Represented By Michael E Hickey
10:00 AM
Michael E. Hickey Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CHRISTINE ACHIEHG MATOKA
EH
Docket 11
The Court notes the following issues raised by the Motion:
The Notice of Motion incorrectly indicated that the hearing was on "regular" rather than "shortened" notice;
The Amended Notice did not name Amerihome as an interested party; and
The Text on §3(f), pg 6, is cut off.
APPEARANCES REQUIRED.
APPEARANCES REQUIRED.
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Joint Debtor(s):
Christine Achieng Matoka Represented By John F Brady
Movant(s):
Chadwick Otieno Ochieng Represented By
10:00 AM
John F Brady
Christine Achieng Matoka Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: RICKY ANTONIO SCOTT AND SHEMIDA SHILONI SCOTT
EH
Docket 14
09/25/2018
The Debtors’ prior case was dismissed on July 25, 2018, for failure to submit 2017 federal and state tax returns to the Trustee. The Debtors and their counsel did not appear at the hearing and the case was dismissed. The Debtors have obtained new counsel. In support of their Motion, they assert that they believed they had complied with the Trustee’s request for the returns by submitting Debtor Husband’s returns but failed to notify the Trustee that the co-debtor was not required to file taxes.
Additionally, the Debtors assert that because their plan proposed a 100% payout to creditors, they were not require to provide refund monies to the estate.
Here the Debtors request that their stay be continued as to the foreclosing creditor, Wells Fargo, who has a sale scheduled for September 26, 2018.
The Debtors have provided sufficient evidence to overcome the § 362(c)(3)(C) presumption that the case was not filed in good faith given that a relief from stay was pending in the prior case as to Wells Fargo when the case was dismissed.
Based on the foregoing, the Court is inclined to GRANT the Motion as to Wells Fargo, the foreclosing creditor.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Ricky Antonio Scott Represented By Eva M Hollands
Joint Debtor(s):
Shemida Shiloni Scott Represented By Eva M Hollands
Movant(s):
Ricky Antonio Scott Represented By Eva M Hollands
Shemida Shiloni Scott Represented By Eva M Hollands
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: FEDERAL INSURANCE COMPANY AND LEXINGTON INSURANCE COMPANY
From: 8/28/18 EH
Docket 162
08/28/2018
Service is Improper Opposition: None
The Court finds that the attachment to the proof of service provides insufficient evidence of the parties served with the Motion and the manner of service. The Court is inclined to CONTINUE the hearing on the Motion to September 25, 2018, at 2:00
p.m. for Movant to file and serve an Amended Notice of Motion and Motion with notice of the continued hearing date and a properly completed proof of service. The deadline for Movant to file the amended pleadings is September 3, 2018.
APPEARANCES WAIVED.
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
2:00 PM
Movant(s):
Emporium Hardwoods Operating Represented By
Susan M Benson
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
HOLDING DATE
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18
Also #25 EH
Docket 83
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18
Also #24 EH
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii) 5065 Brooks Street, Montclair, CA 91763
MOVANT: TAYLOR FAMILY TRUST OF JUNE 16, 2004
Also #27 & #28 EH
Docket 26
Service: Adequate Opposition: None
Pursuant to 11 U.S.C. § 362(c)(3)(A), the automatic stay in the instant case expired on the 30th day after the petition date. Here, Debtor filed an untimely motion to continue the automatic stay (set as matter 27 on the docket), which the Court, through a tentative ruling, has indicated it is inclined to deny. While Debtor offers various general arguments regarding the status of the case, Debtor has not provided a cognizable basis to support the denial of this motion. Therefore, the Court is inclined to GRANT the motion, confirming that the automatic stay terminated on August 22, 2018.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
Movant(s):
Taylor Family Trust of June 16, 2004 Represented By
Paul J Gutierrez
2:00 PM
MOVANT: RICHARD GARAVITO
Also #26 & #28 EH
Docket 33
Service: Proper Opposition: None
Pursuant to 11 U.S.C. § 362(c)(3)(B), a motion to continue the automatic stay must be filed and heard within thirty days of the petition here. Here, the instant motion was filed forty-six days after the petition date, and the matter was set for hearing sixty-four days after the petition. While Debtor acknowledges the above time limitation in the motion, Debtor has provided no argument or basis to avoid the conclusion that the request sought in the motion is statutorily barred as untimely. The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
EH
Docket 37
On July 23, 2018, Richard Garavito ("Debtor") filed a Chapter 11 voluntary petition. Debtor previously filed a Chapter 13 case on April 17, 2018, which was dismissed on July 19, 2018.
On August 29, 2018, the Taylor Family Trust of June 16, 2004 ("Creditor"), the primary creditor in the instant case, filed a motion to confirm that the automatic stay terminated pursuant to 11 U.S.C. § 362(c)(3)(A). On September 7, 2018, Debtor filed a motion to continue/impose the automatic stay. Because Debtor has not offered a cognizable legal argument as to why the automatic stay has not terminated, or why Debtor can obtain a continuation of the automatic stay after the statutory deadline, the Court has posted tentative rulings indicating that it intends to grant Creditor’s motion and deny Debtor’s motion.
On September 11, 2018, Debtor filed a motion to dismiss the case and an application shortening time. On September 13, 2018, the Court approved the application shortening time, and set a hearing for September 25, 2018.
2:00 PM
11 U.S.C. § 1112(b)(1) states:
Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(4) provides a non-exclusive list of sixteen examples of cause – most of which are more appropriately considered when the moving party is an entity other than the debtor.
Here, Debtor’s motion is unclear, at best. The entire argument why the case should be dismissed is reproduced, verbatim, as follows:
In the present case, since the motion to impose and/or continue the stay was not timely filed, the stay will no longer be in effect with the pending motion to terminate the stay filed by secured creditor Taylor Family Trust.
The Debtor should not be penalized due to counsel’s inadvertent calendaring error of the 30 days rule of filing a motion to impose and/or continue the stay. However, an argument can be made that under the majority approach a motion
2:00 PM
to impose or continue the stay shall be filed as to the Debtor individually and not as to the property of the estate. Here, the Subject Property is property of
the estate and the automatic stay should be in effect as to the Subject Property.
However, due to circumstances surrounding the possible termination of the stay, the Debtor requests dismissal of this case as there is no purpose if the stay is not in effect as to the Subject Property.
[Dkt. No. 37, pg. 5]. In summary, Debtor acknowledges that the stay has statutorily terminated and the deadline to continue the automatic stay has lapsed, but then argues that such stay termination is with regards to the Debtor only, not property of the estate. Despite the argument, the Debtor then asserts that due to "circumstances" the Debtor requests dismissal because there is "no purpose" if the stay has also terminated as to property of the estate.
There are multiple issues with the above line of argument. First, Debtor does not appear to have raised any coherent cause for dismissal – the only argument made in favor of dismissal, that the "Subject Property" is not protected by the automatic stay, (and thus this Chapter 11 case cannot be successful) is also explicitly rejected by Debtor. Second, § 1112(b) requires the Court to consider whether dismissal or conversion to Chapter 7 is in the best interests of creditors and the estate. Here, Debtor’s schedules filed in the instant case indicate that all creditors would likely be paid in full if this case was converted to Chapter 7. Therefore, pursuant to the analysis required by § 1112(b), it is unclear why this case would be dismissed rather than converted to Chapter 7.
Finally, the Court acknowledges that, in a reply relating to its motion to confirm that the automatic stay has terminated, Creditor has requested that, if the case is dismissed, Debtor be restricted from re-filing by a bar. While raising this argument in a reply relating to a different motion is procedurally improper, the Court need not address the request at the current time given the issues above.
2:00 PM
Debtor and Creditor to argue: (1) whether there is cause for dismissal; (2) whether the automatic stay is in effect as to the Subject Property; and (3) whether dismissal or conversion to Chapter 7 would be in the best interests of creditors.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
EH
Docket 77
- NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 8/28/18 Also #29
EH
Docket 5
- NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
# 9 - Donahoo & Associates PC #10 - Juan Catano
#11 - Faustino Magana Also #32 & #33
EH
Docket 62
On March 27, 2018, G Hurtado Construction, Inc. ("Debtor") filed its petition for chapter 11 relief. The bankruptcy was precipitated by a wage and hour lawsuit brought by two and possibly more former employees. Catana and Faustino v. G Hurtado Construction, Inc. On May 9, 2018, the Debtor issued a Notice of Bar Date indicating that the Court set a deadline of July 13, 2018 ("Bar Date"), for creditors to file proofs of claims against the Debtor’s estate.
On July 16, 2018, the following claims were filed: Claim #9 by Donahoo & Associates, PC in the amount of $134,475.02, Claim #10 by Juan Catano in the amount of $230,081.64, Claim #11 by Faustino Magana in the amount of $101,240.04 (collectively, "Litigation Claimants")
On August 29, 2018, the Litigation Claimants filed a Motion to allow their claims ("Motion"). Opposition was filed by the Debtor on September 10, 2018 ("Opposition"). On September 17, 2018, the Litigation Claimants filed their Reply to the Opposition ("Reply").
The Litigation Claimants seek the Court’s permission to allow their claims as timely pursuant to FRBP 9006(b)(1). In support of the Motion, the Litigation Claimants have provided evidence that the claims at issue were ready on the Bar Date
2:00 PM
but that due to "a misunderstanding", the claims were mailed to the Court instead of being personally filed by an attorney service. The result is that the claims arrived three days late. In response, the Debtor argues that the failure to timely file a claim was based on mistake, not excusable neglect, and that even assuming, arguendo, that there was neglect, that that neglect was not excusable.
The Court in Pioneer recognized that "excusable neglect" is a flexible, equitable concept, and also reminded us that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect." Pioneer at 389; Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994), as amended on denial of reh'g (Apr. 8, 1994). Although the Debtor argues that the Litigation Claimants’ statements amount to grounds under the concept of ‘mistake’ and not ‘excusable neglect’, the facts belie that assertion. Specifically, the declaration of Mr. Danhoo clearly indicates his instruction to his paralegal was to file the proof of claims on the bar date. There is no evidence or argument that the failure of the paralegal to accurately follow the instruction was due to a mistake in interpreting or applying the applicable rules. Instead, the facts presented comport most closely with the definition of "neglect" indicated in Pioneer, i.e., "to give little attention or respect" to a matter, or "to leave undone or unattended to esp[ecially] through carelessness. Pioneer at 389. The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness. Id. Here, it is is either the carelessness of the attorney in supervising the paralegal, or of the paralegal in following the instruction that most likely resulted in the mailing of the proofs of claim. As such, the remaining issue is whether the neglect in evidence is excusable.
The determination of whether neglect is "excusable" is "an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Such circumstances include "the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay ... and whether the movant acted in good faith." Id. This list is not exhaustive. In re Zilog, Inc., 450 F.3d 996, 1003 (9th Cir. 2006). The determination is essentially an equitable one, taking account of all relevant circumstances surrounding a party's omission. In re Gordian Med., Inc., 499 B.R. 793, 798 (Bankr. C.D. Cal.
2013). No single circumstance in isolation compels a particular result regardless of the other factors. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 n. 2 (9th Cir.1997).
2:00 PM
As to the length of the delay, the claims at issue were filed only three days late, which weighs in favor of allowing the claims. Additionally there is no evidence that the Litigation Claimants have acted other than in good faith. This second factor weighs in favor of allowing the claims.
The two remaining elements of the Pioneer test are danger of prejudice to the debtor and potential impact on judicial proceedings (and length of the delay in the claim's filing). As to a chapter 11 case,
When a proof of claim is timely filed, it puts the debtor and other parties in interest in a bankruptcy case on notice that a particular creditor is asserting a right to payment. When a proof of claim is filed after the bar date, this notice is delayed by the length of time running from the bar date to the date of the untimely claim's filing. During this interval, the debtor and other parties in interest may have taken action in reliance on their knowledge of the body of claims in the case as of the close of the bar date. For example, armed with information about the total amount of filed claims, a debtor may have reached certain tentative conclusions about how much it could afford to pay under a chapter 11 plan and, on that basis, conducted negotiations with the unsecured creditors committee and perhaps secured creditors as well. Equally true, the debtor may have conveyed information to the bankruptcy court during status conferences about the anticipated timing for the filing of a disclosure statement and plan of reorganization, and the bankruptcy court may have taken such information into account in setting various deadlines in the case.
The filing of a late claim has the potential to upend such negotiations and any informal agreements that may have been reached with creditors as well as to require the bankruptcy court to reconsider its previously imposed deadlines. Each case turns on its own facts, and there may be other instances of prejudice to the debtor and an adverse impact on judicial proceedings beyond those mentioned above.
Gordian Med. at 799.
2:00 PM
Here, there is no evidence that the short delay in filing the proofs of claim prejudiced the Debtor. To the contrary, the Litigation Claimants’ claims were identified by the Debtor as a primary factor precipitating the bankruptcy filing. Under these circumstances, absent evidence from the Debtor that the late filing of the claims has materially impacted negotiations or deadlines, the Court finds that the third and fourth factors weigh in favor of allowing the claims.
Based on the foregoing, the Court is inclined to GRANT the Motion in its entirety. Finding that the failure of the Litigation Claimants to timely file their claims by the Bar Date was the result of excusable neglect and ordering the allowance of their claims under FRBP 9006(b)(1) as timely.
APPEARANCES REQUIRED.
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
Donahoo & Associates, PC Represented By Richard E Donahoo
Faustino Magana Represented By Richard E Donahoo
Juan Catano Represented By
Richard E Donahoo
2:00 PM
Also #31 & #33 EH
Docket 45
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18 Also #31 & #32
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
EH
Docket 48
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
From: 4/24/18, 7/31/18 Also #34
EH
Docket 8
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
2:00 PM
(FINAL HEARING)
From: 8/20/18 Also #37 & #40 EH
Docket 7
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Visiting Nurse Association of the Represented By
Todd L Turoci Todd L Turoci
2:00 PM
(FINAL HEARING)
From: 8/20/18 Also #36 & #40 EH
Docket 9
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Visiting Nurse Association of the Represented By
Todd L Turoci Todd L Turoci
2:00 PM
(FINAL HEARING)
From: 8/20/18 Also #36 & #40 EH
Docket 11
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Visiting Nurse Association of the Represented By
Todd L Turoci Todd L Turoci
2:00 PM
(FINAL HEARING)
From: 8/20/18 Also #36 & #40 EH
Docket 12
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Visiting Nurse Association of the Represented By
Todd L Turoci Todd L Turoci
2:00 PM
From: 8/28/18 Also #36 & #39 EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
11:00 AM
Docket 25
09/26/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 990.93 Trustee Expenses: $ 14.81
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
Debtor(s):
Norberto Luna Lopez Represented By Peter Recchia
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 27
09/26/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 7,843.26 Trustee Expenses: $ 48.84
The TFR is approved and the trustee may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Kenneth Christopher Ware Represented By Brian J Soo-Hoo
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 25
09/26/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 1,267.70 Trustee Expenses: $ 58.22
The TFR is approved and the trustee may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Brian James Cooper Represented By Jeremiah D Raxter
Joint Debtor(s):
Kellie Jeanne Rose-Cooper Represented By Jeremiah D Raxter
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 26
09/26/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 1,148 Trustee Expenses: $ 37.90
The TFR is approved and the trustee may submit on the tentative.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Theresa Susanne Ysiano Represented By William J Howell
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
Docket 102
On November 23, 2015 ("Petition Date"), James Lloyd Walker ("Debtor") filed his petition for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate is certain real property located at 13247 Mammoth Street in Hesperia, CA 92344 (the "Mammoth Street Property"). The Mammoth Street Property is currently being rented out by the Debtor.
On March 9, 2018, the Trustee filed a Motion seeking turnover of the Mammoth Street Property ("Motion"). Specifically, the Trustee seeks an order:
Compelling the Debtor to turn over to the Trustee possession, custody, and control of the Mammoth Street Property, including any and all proceeds thereof as of and from the Petition Date and any and all other items to gain possession, custody and control of the Mammoth Street Property such as the property keys and security access codes;
Compelling the Debtor to turn over to the Trustee all books and records relating to the Mammoth Street Property, including an accounting of any and all proceeds thereof, as of and from the Petition Date; and
Requiring the Debtor to comply with the order on or before 14 days after the order becomes a final order.
11:00 AM
Subsequent to the filing of the Motion, the parties agreed to several
continuances of the hearing for settlement discussions. Settlement discussions eventually resulted in an agreement by the Debtor to pay administrative costs in exchange for an agreement to retain the Mammoth Street Property. However, after learning the amount of administrative fees incurred, the Debtor changed his position regarding the agreement.
On September 14, 2018, the Debtor filed a response to the Motion ("Response"). On September 19, 2018, the Trustee filed his reply ("Reply").
Under the Bankruptcy Code, a debtor has a duty to surrender property of the estate to the trustee. § 521(4). Furthermore, a trustee has the duty to "collect and reduce to money the property of the estate for which such trustee serves " § 704(1).
Finally, "any entity, other than a custodian, in possession, custody or control 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 "
Id. § 542 (a).
The Response does not dispute that the Mammoth Street Property is property of the estate. The primary response is that the Debtor needs extra time to save the properties and that the Trustee is needlessly incurring administrative expenses. The issues surrounding the amount of administrative fees, however, are not currently before this Court. Thus, based on the plain language of §521 and § 542, and for the reasons set forth in the Motion, the Court is inclined to order turnover.
For these reasons, the Court is inclined to GRANT the Motion in its entirety. The Debtor’s apparent refusal to cooperate and/or unwillingness to abide by the bankruptcy process are insufficient to justify further delay. The Court finds that turnover and an accounting are required by § 521 and § 542.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
James Lloyd Walker Represented By
Andrew Edward Smyth
Movant(s):
Robert Whitmore (TR) Represented By Cathy Ta Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By Cathy Ta Caroline Djang
11:00 AM
From: 8/1/18 EH
Docket 183
09/26/2018
No opposition has been filed. Service was Proper.
The Court hereby approves Movant’s Interim Fee Application as follows:
The Fees Requested (of $38,910.50) are allowed; and
100% of Expenses Requested (or $1,554.36) are allowed.
As to fees allowed, Movant has established that legal services provided were reasonable and necessary.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
On February 26, 2016, Sam & Greeta Dason ("Debtors") filed a Chapter 7 voluntary petition. On February 22, 2017, the Court approved the employment application of Ramsaur Law Office ("Applicant") to serve as Trustee’s counsel. On March 6, 2017, the Court approved Trustee’s application to employ GlassRatner as real estate broker. On March 7, 2017, the Court approved the application of Karl T. Anderson CPA, Inc. to serve as Trustee’s
11:00 AM
accountant. Since the employment of these professionals, the Court has
approved a Rule 9019 compromise [Dkt. No. 133] and two § 363 sale motions [Dkt. Nos. 146 & 172].
.
On July 11, 2018, Applicant filed the instant fee application. Local Rule 2016-(1)(a)(2)(A) states, in part:
In all cases where the employment of more than one professional person has been authorized by the court, a professional person who files an application for interim fees must give other professional persons employed in the case not less than 45 days notice of the date and time of the hearing.
Here, there was more than one professional person employed, yet Applicant did not comply with the above rule. Therefore, the Court is inclined to CONTINUE the hearing to September 26, 2018, at 11:00 a.m. to comply with the above rule.
Debtor(s):
APPEARANCES WAIVED. Movant to file and service notice of continuance.
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
Also #8 EH
Docket 72
On November 2, 2016, Jaison Vally Surace ("Debtor") filed his petition for chapter 7 relief. John Pringle is the duly appointed chapter 7 trustee ("Trustee"). The deadline for filing claims in the case was April 11, 2017 ("Bar Date").
On August 20, 2018, the Trustee filed a Motion for allowance of claims 24 and 25 of Chase Bank USA, NA as late filed claims allowable against the surplus only ("Objection"). No opposition or response has been filed.
09/26/2018
The Trustee has provided evidence that the claims of Chase Bank were filed after the Bar Date. Based on the Trustee’s evidence, his request that the late-filed claims be paid against any surplus pursuant to § 726(a)(3) is appropriate and the Court is inclined to SUSTAIN the Objection on that basis.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal Jeremy J Alberts
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
Also #7 EH
Docket 74
On November 2, 2016, Jaison Vally Surace ("Debtor") filed his petition for chapter 7 relief. John Pringle is the duly appointed chapter 7 trustee ("Trustee"). The deadline for filing claims in the case was April 11, 2017 ("Bar Date").
On August 20, 2018, the Trustee filed a Motion for allowance of Claim No. 26 of Citibank, N.A. as a late filed claims allowable against the surplus only ("Objection"). On September 14, 2018, the Debtor filed his opposition to the Objection ("Opposition") on the grounds that the debt should be disallowed for failure by Citibank to provide evidence to support its claim. On September 19, 2018, the Trustee filed his reply to the Opposition.
09/26/2018
The Trustee has provided evidence that the claim of Citibank was filed after the Bar Date. Based on the Trustee’s evidence, his request that the late-filed claim be paid against any surplus pursuant to § 726(a)(3) is appropriate and the Court is
11:00 AM
inclined to SUSTAIN the Objection on that basis.
As to the Opposition, the Court agrees with the Trustee that the Debtor is advancing independent grounds for objection to claim and the request, which amounts to a request for disallowance of the claim must be brought by independent motion of the Debtor with notice to Citibank. For these reasons, and all of the reasons articulated by the Trustee, the Court finds that the Opposition must be disregarded.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Jaison Vally Surace Represented By Batkhand Zoljargal Jeremy J Alberts
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Anthony A Friedman
11:00 AM
From: 8/22/18 Also #10 - #12
EH
Docket 104
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 8 ("Claim") of Sake Consulting Engineers, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, an entity that is not the Debtor and therefore not entitled to allowance as a claim.
On August 6, 2018, the Claimant filed its response to the Objection ("Response"). On September 19, 2018, the Trustee filed his reply ("Reply")
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, Trustee has pointed to the fact that the evidence attached to the Claim are addressed to Paul Minnick as a representative of MCG Development. In response, Claimant has provided the same documents referenced by the Trustee and has failed to provide any admissible evidence indicating that liability on the contract can be collected against the Debtor’s estate.
11:00 AM
Based on the foregoing, the Court is inclined to SUSTAIN the Objection disallowing Claim No. 8 of the Claimant.
APPEARANCES REQUIRED.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From:
Also #9 - #12 EH
Docket 108
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 10 ("Claim") of Gouvis Engineering Consulting Group, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, which is an entity that is not the Debtor and therefore is not entitled to allowance as a claim. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
11:00 AM
evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee has pointed to facts tending to defeat the claim by virtue of the fact that Claimant’s own supporting documentation evinces a contractual relationship with Paul Minnick as representative of MCG Development Company, Inc., not on behalf of the Debtor. Absent evidence of a relationship between the Debtor and Claimant, the Claimant has failed to establish the existence of a claim against the Debtor’s estate.
11:00 AM
The Court is inclined to SUSTAIN the Objection and DISALLOW Claim No. 10 in its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18 Also #9 - #12 EH
Docket 102
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 7 ("Claim") of Norman Musselman (the "Claimant"). The Trustee’s Objection asserts that the Claim is fully secured and not entitled to a dividend from the Estate.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that
11:00 AM
filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Claim indicates that it is secured by a Recorded Deed of Trust and Note and that the fair market value of the Property at issue exceeds the amount of the Claim such that it is fully secured. The Trustee requests that the Claim be allowed as fully secured but not entitled to a dividend from the estate. Based on the lack of prejudice to the Claimant and the Claimant’s failure to file response or opposition which this Court deems as consent pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the objection and ALLOW the Claim as a fully secured claim not entitled to a dividend.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18 Also #9 - #11 EH
Docket 106
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 9 ("Claim") of Erwin L. Seifert (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it regards an employment contract between Claimant and MCG Development. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
11:00 AM
evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee asserts that the Claim regards an employment contract between Claimant and MCG Development, not the Debtor. However, a separate Agreement dated May 27, 2014, between the Debtor and Claimant appears to indicate that although the employment contract was created between MDG Development and Claimant, the Debtor separately executed a Note and Deed of Trust in favor of Claimant to secure the obligations under the employment agreement in recognition that Claimant’s employment contract with MDG was "for the benefit of Manors …". (Objection at 18).
11:00 AM
Based on the Agreement between Debtor and Claimant, which the Trustee has not addressed, the Court is inclined to OVERRULE the Objection without prejudice on the basis that the Agreement appears to form a basis for enforcement of the Claim against the Debtor’s estate.
APPEARANCES REQUIRED.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
EH
Docket 42
- NONE LISTED -
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Docket 15
On September 5, 2018, the Debtor’s case was dismissed for failure to properly sign the Declaration by Debtor regarding Income Received Within 60 Days of the Petition ("Declaration"). The Debtor has now moved to vacate the dismissal. The hearing has been set on shortened time per the Court’s order with opposition due at the hearing. The Debtor’s counsel indicates that although the Debtor had signed the deficient documents by the deadline, Counsel’s office inadvertently filed the incorrect Declaration, which resulted in the dismissal of the case. The Debtor has now filed the amended Declaration. Having corrected the basis for dismissal, and given there is no apparent prejudice to creditors, the Court is inclined to GRANT the Motion to Vacate Dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Ruben Thomas Rocha Represented By Edward T Weber
Movant(s):
Ruben Thomas Rocha Represented By Edward T Weber
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
Docket 121
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Movant(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
EH
Docket 88
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays
2:00 PM
Trustee(s):
Chad V Haes
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
EH
Docket 121
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Movant(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
D Edward Hays
2:00 PM
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
EH
Docket 77
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
2:00 PM
Adv#: 6:16-01199 Revere Financial Corporation v. Bank of Southern California, N.A.
EH
Docket 99
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Bank of Southern California, N.A. Represented By
Kathryn M.S. Catherwood
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
2:00 PM
Adv#: 6:17-01085 PRINGLE v. Winn et al
From: 7/12/17, 8/23/17, 10/25/17, 5/16/18, 6/27/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Ralph Winn Represented By
Douglas A Plazak
Sterling Security Service, Inc. Represented By Seth W Wiener
Natalia V Knoch Represented By Seth W Wiener
Steven B Knoch Represented By Seth W Wiener
Stacy Winn Represented By
2:00 PM
Douglas A Plazak
Plaintiff(s):
JOHN P PRINGLE Represented By Charity J Manee Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Authorize Sale of Property Owned in Part by Non-Debtor Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer))
EH
Docket 1
- NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
Defendant(s):
Amy Williams Pro Se
Richard M Thomas Jr. Pro Se
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Trustee(s):
Karl T Anderson (TR) Represented By
2:00 PM
Larry D Simons Frank X Ruggier
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
Also #22 EH
Docket 13
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors" or "Defendants") filed a Chapter 7 voluntary petition.
On March 12, 2018, Mina Farah ("Plaintiff" or "Creditor") filed a complaint against Mark Bastorous, Bernadette Shenouda, and Does 1-10, inclusive ("Defendants") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss. The Plaintiff subsequently amended her complaint ("FAC") on May 3, 2018.
The FAC alleges the Plaintiff gave the Defendants $241,912.00 to invest in improvements to their real estate firm’s commercial office building. Plaintiff alleges the Defendants intentionally concealed other, pending senior liens on the property during negotiations. Plaintiff further contends that her note and deed of trust from Defendants were intentionally recorded in an untimely manner. The property became over-encumbered, as its fair market value was $2,360,000, but held a total debt of over $3,106,156, providing evidence of no intention to repay creditors. The Plaintiff believes her loan was used to buy a large parcel of property in Hesperia for
2:00 PM
Defendants’ personal use.
Plaintiff contends she relied on the Defendants’ misrepresentations when offering the loan, and would not have offered a loan but for the false promises. Her numerous repayment demands in 2016 and 2017 were unsuccessful. Plaintiff further asserts that the Defendants made false representations in a similar manner to another lender, Anis Khalil. Plaintiff asks for compensatory damages of a minimum of $300,000, and punitive damages in a minimum amount of $600,000.
On June 4, 2018, Defendants filed this motion to dismiss ("Motion") for failure to state a claim pursuant to FED. R. CIV. P. Rule 12(b)(6). The Defendants allege the Plaintiff failed to claim nondischargeability under § 523(a)(2)(A) by not proving the claim’s required elements. The Defendants assert that the Plaintiff has merely pled allegations, rather than a claim upon which relief can be granted.
MOTION TO DISMISS STANDARD
To avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
NON-DISCHARGEABILITY
Under 11 U.S.C. § 523(a)(2)(A), a debt is not discharged for money obtained by false pretenses, a false representation, or actual fraud. The elements of a § 523(a)(2)(A) claim are well-established: (1) a representation; (2) that the debtor knew was false; (3)
2:00 PM
that the debtor made with the intention of deceiving the creditor; (4) reliance on the representation by the creditor; (5) and damages as a proximate result of reliance on the representations. See, e.g., In re Eashai, 87 F.3d 1082, 1086 (9th Cir. 1996).
Here, the first sentence of the complaint indicates that the Plaintiff is moving under § 523(a)(2)(A), and the five substantive subsections of the FAC closely track the elements outlined above. Defendants appear to argue that the FAC must cite the applicable bankruptcy law, identify the appropriate elements and apply those elements to the facts alleged. This argument misrepresents the pleading standard. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regiment of a prior era."). Even if Plaintiff had failed to mention § 523(a)(2)(A) within the body of the FAC, such an omission would not be fatal where the FAC’s subsections closely and precisely track the elements of the statute and where all parties and the Court are aware of the legal theory being articulated. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.
1996) ("[E]ven though a complaint is not defective for failure to designate the statute or other provision of law violated, the judge may in his discretion . . . require such detailed as may be appropriate in the particular case."). Here, Plaintiff has adequately identified a cognizable legal theory and has provided adequate factual allegations to support the pled theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) ("Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.").
Separately, as to the argument by Defendants that the Plaintiff has failed to adequately provide notice of which Defendant made the alleged misrepresentation, the Court concurs that ¶14 of the FAC does not adequately identify the Defendant and manner in which the representations were made to the Plaintiff.
For the foregoing reasons, consistent with the Court’s prior rulings in the related Bastorous actions, the Court is incline to GRANT the Motion with leave to amend only as to the need for more specificity as to the circumstances surrounding the misrepresentations in accordance with FRCP 9(b).
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen Larry G Noe
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
by Wayne W Suojanen on behalf of Mina Farah against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18, 8/22/18 Also #21
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen Larry G Noe
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Also #24 EH
Docket 13
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors" or "Defendants") filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff" or "Creditor") filed a complaint against Mark Bastorous, Bernadette Shenouda, and Does 1-10, inclusive ("Defendants") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss. The Plaintiff subsequently amended her complaint ("FAC") on May 3, 2018.
The FAC alleges the Plaintiff gave the Defendants around $260,000.00 to invest in improvements to their real estate firm’s commercial office building. Plaintiff alleges the Defendants intentionally concealed other, pending senior liens on the property during negotiations. Plaintiff further contends that her note and deed of trust from Defendants were intentionally recorded in an untimely manner. The property became over-encumbered, as its fair market value was $2,360,000, but held a total debt of over $3,106,156, providing evidence of no intention to repay creditors. The Plaintiff believes his loan was used to buy a large parcel of property in Hesperia for
2:00 PM
Defendants’ personal use.
Plaintiff contends he relied on the Defendants’ misrepresentations when offering the loan, and would not have offered a loan but for the false promises that the loan would be the senior lien. His numerous repayment demands in 2016 and 2017 were unsuccessful. Plaintiff further asserts that the Defendants made false representations in a similar manner to another lender, Mina Farah. Plaintiff asks for compensatory damages of a minimum of $300,000, and punitive damages in a minimum amount of
$600,000.
On June 4, 2018, Defendants filed this motion to dismiss ("Motion") for failure to state a claim pursuant to FED. R. CIV. P. Rule 12(b)(6). The Defendants allege the Plaintiff failed to claim nondischargeability under § 523(a)(2)(A) by not proving the claim’s required elements. The Defendants assert that the Plaintiff has merely pled allegations, rather than a claim upon which relief can be granted.
MOTION TO DISMISS STANDARD
To avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
NON-DISCHARGEABILITY
2:00 PM
Under 11 U.S.C. § 523(a)(2)(A), a debt is not discharged for money obtained by false pretenses, a false representation, or actual fraud. The elements of a § 523(a)(2)(A) claim are well-established: (1) a representation; (2) that the debtor knew was false; (3) that the debtor made with the intention of deceiving the creditor; (4) reliance on the representation by the creditor; (5) and damages as a proximate result of reliance on the representations. See, e.g., In re Eashai, 87 F.3d 1082, 1086 (9th Cir. 1996).
Here, the first sentence of the FAC indicates that the Plaintiff is moving under § 523(a)(2)(A), and the five substantive subsections of the FAC closely track the elements outlined above. Defendants appear to argue that the FAC must cite the applicable bankruptcy law, identify the appropriate elements and apply those elements to the facts alleged. This argument simply misrepresents the pleading standard. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regiment of a prior era."). Even if Plaintiff had failed to mention § 523(a)(2)(A) within the body of the FAC, such an omission would not be fatal where the FAC’s subsections closely and precisely track the elements of the statute and where all parties and the Court are aware of the legal theory being articulated. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) ("[E]ven though a complaint is not defective for failure to designate the statute or other provision of law violated, the judge may in his
discretion . . . require such detailed as may be appropriate in the particular case."). Here, Plaintiff has adequately identified a cognizable legal theory and has provided adequate factual allegations to support the pled theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) ("Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.").
Separately, as to the argument by Defendants that the Plaintiff has failed to adequately provide notice of which Defendant made the alleged misrepresentation, the Court notes that ¶14 of the FAC appears to identify Defendant Bastorous as the party that made the misrepresentations. If this is the case, the FAC appears insufficient to state a claim against Defendant Shenouda.
For the foregoing reasons, consistent with the Court’s prior rulings in the related
2:00 PM
Bastorous actions, the Court is incline to GRANT the Motion with leave to amend only as to the need for more specificity as to the circumstances surrounding the misrepresentations in accordance with FRCP 9(b) and to amend to state a claim against Shenouda if Plaintiff intends to maintain claim as against the joint debtor.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen Larry G Noe
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18, 8/22/18 Also #23
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen Larry G Noe
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 7/24/18, 7/25/18 Also #26
EH
Docket 11
Moving Defendant leads the analysis astray by conflating issues of standing to enforce the Consent Judgment with the question of standing of a Debtor-in-possession to prosecute a fraudulent conveyance action under § 548. However, that misdirection is rendered irrelevant once the focus shifts to the § 548 elements outlined in Plaintiff's opposition, and in particular on the glaring, inescapable conclusion that Plaintiff has failed to allege facts to support that a transfer occurred -- an essential element of a Section 548 cause of action.
Here the facts at issue pertain to the Defendants' alleged failure to act (at some point, although the Court is unclear of the basis for Plaintiff's allegation of a specific date for the transfer) to release or extinguish a junior lien against Debtor's property. But no specific affirmative act, or transfer of possession or ownership is alleged to have occurred. See Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282 (9th Cir. 1996) ("'[A] transfer is a disposition of an interest in property. The definition is as broad as possible. … Under this definition, any transfer of an interest in property is a transfer, including a transfer of possession, custody, or control even if there is no transfer of title, because possession, custody, and control are interests in property.") (citations omitted); Greenspan v. Orick, Herrington & Sutcliffe LLP (In re Brobeck, Phleger & Harrision LLP), 408 B.R. 318, 338 (Bankr. N.D. Cal. 2009) ("Within the confines of these general principles, the general rule is that "[t]he hallmark of a 'transfer' is a change in the rights of the transferor with respect to the property after the transaction."); In re Feiler, 218 B.R. 957, 960 (Bankr. N.D. Cal. 1998), aff'd, 230 B.R.
2:00 PM
164 (B.A.P. 9th Cir. 1999), aff'd, 218 F.3d 948 (9th Cir. 2000) ("Within the context of a fraudulent transfer, the definition of transfer is sufficiently broad to include a transfer that results in a modification of form or value of property transferred or a deposit into or withdrawal from a bank account.") (citations omitted); Kapila v. U.S. (In re Taylor), 386 B.R. 361, 369 (Bankr.S.D.Fla.2008) (debtor's waiver of an NOL carryback constitutes a transfer).
Here, Plaintiff simply hasn't alleged any change of rights in property after any particular transaction, nor has Plaintiff otherwise presented any authority for its proposition that the Defendants' failure to release the lien somehow constitutes a transfer. Basically, it appears here that what the estate MAY have is a right to enforce the Consent Judgment so as to compel extinguishment of the junior lien. But that question is not before the Court, and the Court takes no position on whether it is a viable cause of action or if the Debtor even has standing to prosecute it. For that reason, the Court is inclined to find that the Plaintiff has failed to state an actionable claim under the bankruptcy code, and therefore the Amended Complaint should be dismissed.
APPEARANCES REQUIRED
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Movant(s):
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 6/26/18, 7/24/18, 7/25/18 Also #25
EH
Docket 1
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 8/29/18 EH
Docket 37
- NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Movant(s):
Itria Ventures, LLC Represented By Michael F Chekian
Plaintiff(s):
Itria Ventures, LLC Represented By
2:00 PM
Trustee(s):
Michael F Chekian
Arturo Cisneros (TR) Represented By Thomas H Casey
11:00 AM
Adv#: 6:18-01129 Tarhuni v. Home Loan Investment Bank FSB et al
EH
Docket 9
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Home Loan Investment Bank FSB Represented By
Angie M Marth
US Department of Hud Pro Se
Everett A Barton Jr Pro Se
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01129 Tarhuni v. Home Loan Investment Bank FSB et al
From: 8/23/18 Also #1
EH
Docket 1
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Home Loan Investment Bank FSB Represented By
Angie M Marth
US Department of Hud Pro Se
Everett A Barton Jr Pro Se
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 97
- NONE LISTED -
Debtor(s):
Robert B Eppley Represented By Michael Smith Sundee M Teeple
Movant(s):
Robert B Eppley Represented By Michael Smith Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 98
- NONE LISTED -
Debtor(s):
Robert B Eppley Represented By Michael Smith Sundee M Teeple
Movant(s):
Robert B Eppley Represented By Michael Smith Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 229
- NONE LISTED -
Debtor(s):
Mildred Goodridge Crawford Represented By Michael Smith Craig K Streed Sundee M Teeple
Movant(s):
Mildred Goodridge Crawford Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/23/18 EH
Docket 98
- NONE LISTED -
Debtor(s):
Steven W Moll Represented By Gary J Holt
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8 EH
Docket 129
- NONE LISTED -
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Movant(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 128
- NONE LISTED -
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Movant(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 45
- NONE LISTED -
Joint Debtor(s):
Elsy G. Mejia Represented By
James Geoffrey Beirne
Movant(s):
Elsy G. Mejia Represented By
James Geoffrey Beirne James Geoffrey Beirne James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 59
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/13/18 Also #10
EH
Docket 57
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Movant(s):
John D Castro Jr Represented By Chris A Mullen
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 45
- NONE LISTED -
Debtor(s):
Mario Mondragon Represented By Michael Smith Sundee M Teeple
Movant(s):
Mario Mondragon Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Debra J. Falcone Represented By Michael Smith Craig K Streed Sundee M Teeple
Joint Debtor(s):
Charles W. Blackburn Represented By Michael Smith Craig K Streed Sundee M Teeple
Movant(s):
Debra J. Falcone Represented By Michael Smith Craig K Streed Sundee M Teeple
Charles W. Blackburn Represented By Michael Smith Craig K Streed Sundee M Teeple
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 36
- NONE LISTED -
Debtor(s):
Arturo Olvera Represented By William Radcliffe
Movant(s):
Arturo Olvera Represented By William Radcliffe William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/30/18 EH
Docket 20
- NONE LISTED -
Debtor(s):
Latoya Joy Armstrong Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 109
- NONE LISTED -
Debtor(s):
Lesley M Castle Represented By Michael Smith
Dale Parham - INACTIVE - Sundee M Teeple
Movant(s):
Lesley M Castle Represented By Michael Smith Michael Smith Michael Smith
Dale Parham - INACTIVE - Dale Parham - INACTIVE - Dale Parham - INACTIVE - Sundee M Teeple
Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 160
- NONE LISTED -
Debtor(s):
Rigoberto Baez Represented By Michael Smith Sundee M Teeple
Movant(s):
Rigoberto Baez Represented By Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Percylyn Agustin Basa Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adrio Soedarmo Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Yolanda Soedarmo Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Antonio Anaya Represented By Jaime A Cuevas
Joint Debtor(s):
Maria Anaya Represented By
Jaime A Cuevas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael James Watts Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeffrey Wayne Grieves Represented By Mona V Patel
Joint Debtor(s):
Brande Rae Grieves Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Incha K Lockhart Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rafael Loyola Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Arquillano Represented By Andrew Nguyen
Joint Debtor(s):
Janet Arquillano Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Vogel Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joseph Daniel Shubin Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sheikh Azeem Akhtar Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rimtautas Marcinkevicius Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Luis R. Contreras Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Frank Prouty Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Denise Kelly Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael D. Wickham Represented By
M Wayne Tucker
Joint Debtor(s):
JoAnn Y. Wickham Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brianne Lucinda Pituley Represented By Steven A Alpert
Joint Debtor(s):
Michele Diana Niehe Sharik Pituley Represented By
Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John David Kraus Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Charlena Clark Represented By William Radcliffe
Movant(s):
Charlena Clark Represented By William Radcliffe William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #37 EH
Docket 0
- NONE LISTED -
Debtor(s):
Charlena Clark Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Devon Boisvert Represented By Paul Y Lee
Joint Debtor(s):
Jennifer Narita Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ignacio Diaz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shannon Williams Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Ryan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Willie Mills Sanders Jr. Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose F Mejia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Barbara Sue Patten Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe Rivas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Paul Sheldon Kirkwood Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Martin Ontiveros Represented By Allan O Cate
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miguel Santa Maria Represented By Todd L Turoci
Joint Debtor(s):
Lilia Maldonado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jorge Luis Puerto Represented By Michael E Clark
Joint Debtor(s):
Diana Lazara Puerto Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joseph R. Hernandez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Ray Schmidt Jr. Represented By Carey C Pickford
Joint Debtor(s):
Debbie Lynn Schmidt Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Reyna Castro Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jenny Angela Bernal Represented By John H Kibbler
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Coree Anne Apaez Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 15
- NONE LISTED -
Debtor(s):
Patrick Lovato Represented By Justin Lynch
Movant(s):
Patrick Lovato Represented By Justin Lynch Justin Lynch
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 152
- NONE LISTED -
Debtor(s):
Robert Wayne Cook Sr. Represented By Steven A Alpert
Joint Debtor(s):
Kelly Danielle Cook Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Rosalie Estella Crouch Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Jose Luis Gutierrez Represented By Kelly Warren
Joint Debtor(s):
Patricia Gutierrez Represented By Kelly Warren
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Also opposing docket entry no. 69)
EH
Docket 78
- NONE LISTED -
Debtor(s):
Michelle Ann Maki Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 225
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Brett R Bourbeau Represented By
H. Christopher Heritage
Joint Debtor(s):
Nicole S Bourbeau Represented By
H. Christopher Heritage
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Martin D Woods Represented By
M Wayne Tucker
Joint Debtor(s):
Shante L Woods Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 109
- NONE LISTED -
Debtor(s):
Richard Hill Lindsay Represented By Emilia N McAfee
Joint Debtor(s):
Laura Lee Lindsay Represented By Emilia N McAfee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #68 EH
Docket 78
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #67 EH
Docket 80
- NONE LISTED -
Debtor(s):
Anderson L Pepper Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Marc Meisenheimer Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Anna Doreen Valles Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Andy Valles Jr. Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 157
- NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
- NONE LISTED -
Debtor(s):
Larry Patrick Egan Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Egan Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 100
- NONE LISTED -
Debtor(s):
Ethel N Odimegwu Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 74
- NONE LISTED -
Debtor(s):
Maurice Frank Manceau Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Andre J Booker Represented By Paul Y Lee
Joint Debtor(s):
Carrie L Booker Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Lubna Shiraz Ahmed Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 88
- NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Ryan Patrick McHugh Represented By Paul Y Lee
Joint Debtor(s):
Jennifer Lynne McHugh Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 56
- NONE LISTED -
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Roberto Garcia Garcia Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Maria Martha Garcia Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
- NONE LISTED -
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Jesus E. Montano Represented By Paul Y Lee
Joint Debtor(s):
Nichole Montano Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Ertun Reshat Represented By
April E Roberts
Joint Debtor(s):
Hale Reshat Represented By
April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Yvonne Irene Rodriguez Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
Aaron Edward Steve Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
- NONE LISTED -
Debtor(s):
Amanuel Montrell Bradberry Represented By Gary S Saunders
Joint Debtor(s):
Katrina Lashall Bradberry Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Rogelio Ramos Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Escobar Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 37
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 25
- NONE LISTED -
Debtor(s):
Caleb Gervin Represented By
Christopher Hewitt
Joint Debtor(s):
Ashley Gervin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
- NONE LISTED -
Debtor(s):
Sandra Lorena Parra Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Adv#: 6:18-01153 Hutton v. WELLS FARGO BANK, N.A. et al
EH
Docket 14
On April 10, 2018 ("Petition Date"), Lenton Hutton ("Debtor") filed his petition for chapter 13 relief. Among the assets of the Debtor’s estate on the petition date was certain real property located at 13370 Sea Gull Dr. in Victorville, CA. On the Petition Date, Wells Fargo Bank, N.A. ("Wells") held a Trustee’s sale of the Property.
On April 23, 2018, Wells filed a motion for relief from stay (the "RFS Motion"). On May 21, 2018, the Court denied the RFS Motion on the grounds that no stay was in effect in the case pursuant to § 362(c)(4) (the "RFS Order"). The record reflects that the Debtor did not seek reconsideration of the RFS Order, nor was the RFS Order appealed. On June 14, 2018, the bankruptcy case was dismissed following the confirmation hearing.
On May 17, 2018, the Debtor filed an action against Wells seeking damages and equitable relief based on various state law claims, in addition to two claims arising from the bankruptcy proceeding (the "Action"). On July 12, 2018, Wells removed the Action filed by the Debtor in State Court to the Bankruptcy Court.
On August 9, 2018, the Debtor filed an Amended Complaint (the "FAC"). On August 23, 2018, Wells filed the instant Motion to Dismiss the FAC ("Motion"). The Debtor filed Opposition to the Motion on September 7, 2018. Wells filed its reply to the Motion on September 13, 2018.
11:01 AM
The Action appears premised primarily upon the incorrect assertion that Wells foreclosed in violation of the automatic stay. However, as set forth in the background section and as indicated on the Court’s Docket for the Main Case and, specifically, the RFS Order (of which the Court takes judicial notice), there was no stay when Wells foreclosed. The Debtor has not challenged the RFS Order either by seeking reconsideration or by appealing the order. Therefore, the Court is inclined to find that under the doctrine of collateral estoppel, the FAC must be dismissed as to the allegations alleging that a violation of the automatic stay occurred.
As to the remaining allegations going to state law claims regarding violations of the covenant of good faith and fair dealing, violation of the Business and Professions Code, Promissory Estoppel, and Violation of C.C.P. § 726, the Court finds as follows:
The dismissal of a bankruptcy case has several ramifications as set out in Bankruptcy Code Section 349. The Ninth Circuit has explained, "Section 349 of the Bankruptcy Code lists the various effects of dismissal of the underlying bankruptcy case; conspicuously absent from that list is automatic termination of jurisdiction of related cases." In re Carraher, 971 F.2d 327, 328 (9th Cir. 1992). The bankruptcy court may retain jurisdiction over a related proceeding subject to considerations of judicial economy, fairness, convenience and comity. In re Casamont Inv'rs, Ltd., 196 B.R. 517, 522 (9th Cir. BAP 1996).
Here, the Debtor’s underlying bankruptcy case was dismissed on June 14, 2018. The instant adversary proceeding is at its early stages. Given the Court’s tentative ruling that the Debtor is precluded from arguing that Wells foreclosed in violation of the automatic stay, the remaining allegations of the Debtor relate primarily to a determination of rights arising under state law, which are more appropriately raised in State Court and over which this Court cannot make final rulings pursuant to Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011). Based on the foregoing, the Court has determined that the principles of judicial economy, fairness, convenience and comity do not favor this Court’s retention of jurisdiction over the action. Additionally, as an alternative grounds for dismissal, the Court incorporates the findings related to jurisdiction and finds that abstention is also appropriate as to the state law allegations and claims of the Debtor.
11:01 AM
The Court is inclined to DISMISS the FAC as to the Wrongful Foreclosure and Violation of the Stay claims, to the extent that these claims arise solely from the alleged violation of the automatic stay, and to REMAND the FAC to the State Court as to the remaining non-bankruptcy related issues both under a theory of declining jurisdiction and of absention.
APPEARANCES REQUIRED.
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt Patricia Rodriguez
Defendant(s):
WELLS FARGO BANK, N.A. Represented By
J. Barrett Marum
Clear Recon Corp. Pro Se
DOES 1 through 10, inclusive Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By
J. Barrett Marum
Plaintiff(s):
Lenton T. Hutton Represented By Patricia Rodriguez
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Adv#: 6:18-01153 Hutton v. WELLS FARGO BANK, N.A. et al
From: 8/30/18 Also #96
EH
Docket 1
- NONE LISTED -
Debtor(s):
Lenton Hutton Represented By Christopher Hewitt Patricia Rodriguez
Defendant(s):
WELLS FARGO BANK, N.A. Represented By
J. Barrett Marum
Clear Recon Corp. Pro Se
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
Lenton T. Hutton Represented By Patricia Rodriguez
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 37
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
10:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
From: 6/20/18, 7/24/18, 8/21/18 EH
Docket 53
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Donald Ray Eskridge Represented By Paul Y Lee
Movant(s):
PennyMac Loan Services, LLC Represented By John D Schlotter
Karrollanne K Cayce Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 45
- NONE LISTED -
Debtor(s):
Frank Munoz Represented By
Alon Darvish
Joint Debtor(s):
Nanci Jessie Munoz Represented By Alon Darvish
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HILTON RESORTS CORPORATION
EH
Docket 68
- NONE LISTED -
Debtor(s):
Clarice Morris Represented By Paul Y Lee
Movant(s):
Hilton Resorts Corporation Represented By Thomas R Mulally
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 57
10/02/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Anna C. Hopson Represented By Julie J Villalobos
Joint Debtor(s):
George E. Hopson Represented By Julie J Villalobos
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 26
- NONE LISTED -
Debtor(s):
Keely J Barrett Represented By Carey C Pickford
Movant(s):
Freedom Mortgage Corporation Represented By Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 9/4/18 EH
Docket 43
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
From: 9/4/18 EH
Docket 27
- NONE LISTED -
Debtor(s):
Justa Nelida Guzman Represented By Lionel E Giron
Movant(s):
The Bank of New York Mellon, et al Represented By
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILLMINGTON SAVINGS FUND SOCIETY FSB dba CHRISTIANA TRUST
CASE DISMISSED 9/27/18
EH
Docket 39
10/02/2018
Service: Proper Opposition: Yes
Debtor’s case was dismissed on September 27, 2018. Debtor filed opposition to the Motion but did not address the assertion by Movant that the case was filed in bad faith with evidence of two prior cases which the Court’s records reflect were both dismissed for failure by Debtor to make plan payments. Based on the evidence, coupled with the recent dismissal of the instant case for failure to make plan payments, the Court is inclined to GRANT relief from the stay under § 362(d)(4).
GRANT waiver of 4001(a)(3) stay. The remaining requests for relief are DENIED as moot based on the dismissal of the case.
APPEARANCES REQUIRED.
Debtor(s):
Sandra Lorena Parra Represented By Christopher J Langley
Movant(s):
Wilmington Savings Fund Society, Represented By
Jamie D Hanawalt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 29
10/02/2018
Service is Proper Opposition: YES
Parties to indicate whether there has been progress on an agreement for an APO. APPEARANCES REQUIRED.
Debtor(s):
David Bruce Bremer Represented By Paul Y Lee
Joint Debtor(s):
Tina Marie Bremer Represented By Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 8
10/02/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Frederick Hale Powers Represented By
Linda Roberts-Ross
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: ALTURA CREDIT UNION
EH
Docket 9
10/02/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Richard M Bolter Represented By Christopher J Langley
Joint Debtor(s):
Shantell V Bolter Represented By Christopher J Langley
Movant(s):
Altura Credit Union Represented By Brian T Harvey
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: THE DAVID J. ROGALIA AND PENNY L. ROGALIA JOINT LIVING TRUST, PENNY L. ROGALIA TRUSTEE
EH
Docket 8
- NONE LISTED -
Debtor(s):
Shaun Besci Pro Se
Movant(s):
The David J Rogalia and Penny L Represented By
Barry L O'Connor
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DAVID MEISLAND
EH
Docket 11
10/02/2018
The Debtor’s proposed plan indicates a good faith attempt to address the reasons for dismissal of the prior case. Service was proper. No opposition was filed. Based on the foregoing, the Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
David Meisland Represented By Nima S Vokshori
Movant(s):
David Meisland Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JOSE VELASCO & LILIAN MICAELA VELASCO
From: 9/17/18 EH
Docket 12
- NONE LISTED -
Debtor(s):
Jose Antonio Velasco Represented By Danny K Agai
Joint Debtor(s):
Lilian Micaela Velasco Represented By Danny K Agai
Movant(s):
Jose Antonio Velasco Represented By Danny K Agai
Lilian Micaela Velasco Represented By Danny K Agai Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CARLOS GARCIA
EH
Docket 11
10/02/2018
Debtor’s efforts to address the issues which cause dismissal in the prior case, as detailed in the Debtor’s declaration, provide clear and convincing evidence that overcomes the presumption that the Debtor’s case was not filed in good faith. For these reasons, including the lack of opposition, the Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Carlos Garcia Represented By John F Brady
Movant(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Also #17 EH
Docket 106
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Jerry Seelig Represented By
Sara Chenetz
2:00 PM
Also #16 EH
Docket 75
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
Todd L Turoci
Movant(s):
Jerry Seelig Represented By
Sara Chenetz
2:00 PM
Requiring Status Report EH
Docket 0
NONE LISTED -
Debtor(s):
Antoine Hossein Babai Represented By Christopher Hewitt
10:00 AM
From: 9/12/18 EH
Docket 10
NONE LISTED -
Debtor(s):
Jennifer Monique Devore-Garcia Represented By
Daniel King
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
From: 9/12/18 EH
Docket 11
NONE LISTED -
Debtor(s):
Reva Mae Scott Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 30
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,153.25 Trustee Expenses: $ 30.80
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
James Freeman Represented By Robert W Ripley
Joint Debtor(s):
Darnetta Smith-Freeman Represented By Robert W Ripley
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
From: 8/22/18 EH
Docket 98
NONE LISTED -
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
Docket 7
On August 21, 2018, Jose Peralta-Velasquez ("Debtor") filed a Chapter 7 voluntary petition. Debtor had previously filed three bankruptcies in the previous fifteen months, all of which were dismissed for failure to file information. On September 6, 2018, UST filed a motion to dismiss case, requesting a one-year re-filing bar.
Dismissal
11 U.S.C. § 707(b)(1) permits the Court to dismiss a Chapter 7 case for abuse. 11 U.S.C.
§ 707(b)(3)(A) states:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in
11:00 AM
paragraph (2)(A)(i) does not arise or is rebutted, the court shall consider –
(A) whether the debtor filed the petition in bad faith
In determining whether a case should be dismissed under § 707(b)(3)(A), the Court considers the totality of the circumstances, but is ultimately instructed to consider whether "the debtor’s intention in filing a bankruptcy petition is inconsistent with the Chapter 7 goals of providing a ‘fresh start’ to debtors and maximizing the return to creditors." In re Mitchell, 357 B.R. 142, 154-55 (Bankr. C.D. Cal. 2006) (listing factors to be considered in making that determination).
The majority of the Mitchell factors are inapplicable when, as here, a debtor files a skeletal petition that does not provide the Court with sufficient information to apply the Mitchell test. Only factor seven (history of bankruptcy filings) and, possibly, factor nine (egregious behavior) can be assessed when a debtor files a skeletal petition. Both those factors weigh in favor of dismissal when, as here, a debtor repeatedly files skeletal petitions during a short period of time, and does not disclose previous filings.1 While § 707(a)(1) and (3) provide for dismissal when a debtor fails to fulfill his duties under the Bankruptcy Code, when a debtor repeatedly files bankruptcy and fails to evince any attempt to comply with the filing requirements, it can be inferred, absent any indication to the contrary, that the debtor’s purpose in filing bankruptcy is not to take advantage of the fresh start. See, e.g., In re Craighead, 377 B.R. 648, 655 (Bankr.
N.D. Cal. 2007) ("Courts generally hold that when a debtor repeatedly files bankruptcy petitions and then repeatedly fails to file schedules or to comply with other requirements, this pattern of behavior is evidence of bad faith and an attempt to abuse the system."). Dismissal under § 707(b)(3) is appropriate in those circumstances.
Re-Filing Bar
The court is empowered to impose a refiling bar under 11 U.S.C. § 349(a). As
11:00 AM
COLLIER notes, courts’ analysis of this section is somewhat confused due to confounding "dismissal with prejudice" with "dismissal with injunction against future filings." COLLIER ON BANKRUPTCY ¶ 349.02[3]; compare In re Garcia, 479 B.R. 488 (Bankr. N.D. Ind. 2012) (denying motion for dismissal with prejudice, but imposing three-year refiling bar) with In re Craighead, 377 B.R. 648 (Bankr. N.D. Cal. 2007) (appearing to equate dismissal with prejudice with an injunction against refiling).
There is also a circuit split concerning whether an injunction on refiling for more than 180 days is allowed under the Bankruptcy Code. Compare In re Frieouf, 938 F.2d 1099 (10th Cir. 1991) (180 days is maximum allowed length of refiling injunction) with Casse v. Key Bank Nat. Ass’n, 198 F.3d 327 (2nd Cir. 1999) (injunction against filing for more than 180 days permissible). 11 U.S.C. § 349(a) reads:
Unless, the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
The disagreement revolves around whether the qualifier "Unless, the court, for cause, orders otherwise" modifies the content after the semi-colon. In re Leavitt noted this disagreement, but since the court was dealing with a dismissal with prejudice, rather than an injunction against refiling, it did not resolve the issue. 209 B.R. 935, 942 (9th Cir. B.A.P. 1997). Within the Ninth Circuit, it appears the trend is to adopt the reasoning of the Second Circuit and allow injunctions for more than 180 days. See e.g. In re Velasques, 2012 WL 8255582 at *3 (Bankr. E.D. Cal. 2012).
Here, Debtor has filed three skeletal bankruptcies in the previous fifteen months and failed to file the balance of the required case commencement documents in the instant case As noted above, the Court has determined that Debtor’s behavior is sufficient to warrant dismissal for bad faith and the Court finds the requested one year refiling bar to be appropriate.
Moreover, Debtor’s failure to oppose is deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
11:00 AM
The Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Jose Peralta-Velasquez Jr Pro Se
Movant(s):
United States Trustee (RS) Represented By Mohammad Tehrani
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
From: 9/26/18 EH
Docket 88
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
2:00 PM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
From: 9/26/18 EH
Docket 77
NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By
2:00 PM
Laurel R Zaeske Arjun Sivakumar Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01199 Revere Financial Corporation v. Bank of Southern California, N.A.
ap-01307-MH ; 6:16-ap-01163-MH; 6:16-ap-01199 for Discovery Purposes Only From: 9/26/18
EH
Docket 99
NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Bank of Southern California, N.A. Represented By
Kathryn M.S. Catherwood
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske
2:00 PM
Arjun Sivakumar Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
ap-01307-MH ; 6:16-ap-01163-MH; 6:16-ap-01199 for Discovery Purposes Only From: 9/26/18
EH
Docket 121
NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw
Movant(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
2:00 PM
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 11/15/17, 12/6/17, 1/10/18, 6/6/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Plaintiff(s):
Itria Ventures, LLC Represented By Michael F Chekian
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
From: 7/31/18 EH
Docket 1
NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Plaintiff(s):
Zamucen & Curren LLP Represented By Patricia J Grace
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 7/24/18, 7/25/18, 9/26/18 Also #13
EH
Docket 11
The Debtor’s FAC is premised on the assumption that the Consent Judgment required BOFA and its successors to extinguish the second lien on his principal residence. However, while the Debtor asserts he is not seeking enforcement of the Consent Judgment, in order to maintain a claim under § 544 (b)(1) or §§ 28 U.S.C. 3301-3308, the Debtor must demonstrate, at a minimum, that the Consent Judgment required BOFA to release his second mortgage. The FAC thus sets forth the provisions of the Consent Judgment which he believes establish that his second mortgage should have been extinguished. (FAC at pp. 6-7, subheading C. The Terms of the Judgment). Whether or not the Debtor seeks enforcement of the Consent Judgment, its provisions and conditions must be interpreted for the Debtor to prevail.
Here, a quick examination of the Consent Judgment reveals several hurdles as it pertains to the Debtor’s claims: first, the language of the Consent Judgment which purportedly resulted in a ‘transfer’ of the Debtor’s property is found under the ‘Consumer Relief’ provisions of the Consent Judgment. However, a plain reading of ¶ 5 of the Consent Judgment indicates that BOFA was required to provide up to "$7,626,200,000 of relief to consumers who meet eligibility criteria… and
$948,000,000 of refinancing relief." This provision calls into question the Debtor’s assumption that his second mortgage was required to be extinguished pursuant to the Consent Judgment when read alongside the language of page 169, part 2.c.i., which states, in pertinent part, "Servicer agrees that it must write down second liens consistent with the following program until its Consumer Relief Requirement credits are fulfilled." The Court gleans from these provisions that as to the Consumer Relief
2:00 PM
Requirements, not all second liens having met the criteria of part 2.c.i.2.a. were required to be extinguished as part of the Consent Judgment. Instead, the Consent Judgment provides which kinds of second liens were eligible for relief and placed a minimum dollar amount of relief that BOFA was required to meet. However, it appears that so long as BOFA met the stated dollar amount of required consumer relief, BOFA would have been in compliance with the Consent Judgment.
In sum, the Court agrees with Defendants that to prevail, the Debtor must establish that BOFA was required to release the lien pursuant to the Consent Judgment. Absent such a finding, the Debtor cannot be said to have been parted from property pursuant to § 101(54) (defining "transfer"). Having failed to aver in the FAC "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face," the Court finds that the FAC must be dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). Specifically, the Court finds that Debtor has failed to plead sufficient facts underpinning the existence of a transfer to allege a cognizable legal theory.
Finally, although the Court need not reach this issue today, the Court questions whether a request to make findings that the Consent Judgment would have required BOFA to extinguish the second lien amounts to "enforcement" such that exclusive jurisdiction lies with the District Court for the District of Columbia.
The Court is inclined to GRANT the Motion and DISMISS the FAC without leave to amend. APPEARANCES REQUIRED.
Moving Defendant leads the analysis astray by conflating issues of standing to enforce the Consent Judgment with the question of standing of a Debtor-in-possession to prosecute a fraudulent conveyance action under § 548. However, that misdirection is rendered irrelevant once the focus shifts to the § 548 elements outlined in Plaintiff's opposition, and in particular on the glaring, inescapable conclusion that Plaintiff has failed to allege facts to support that a transfer occurred -- an essential element of a Section 548 cause of action.
2:00 PM
Here the facts at issue pertain to the Defendants' alleged failure to act (at
some point, although the Court is unclear of the basis for Plaintiff's allegation of a specific date for the transfer) to release or extinguish a junior lien against Debtor's property. But no specific affirmative act, or transfer of possession or ownership is alleged to have occurred. See Bernard v. Sheaffer (In re Bernard), 96 F.3d 1279, 1282 (9th Cir. 1996) ("'[A] transfer is a disposition of an interest in property. The definition is as broad as possible. … Under this definition, any transfer of an interest in property is a transfer, including a transfer of possession, custody, or control even if there is no transfer of title, because possession, custody, and control are interests in property.") (citations omitted); Greenspan v. Orick, Herrington & Sutcliffe LLP (In re Brobeck, Phleger & Harrision LLP), 408 B.R. 318, 338 (Bankr. N.D. Cal. 2009) ("Within the confines of these general principles, the general rule is that "[t]he hallmark of a 'transfer' is a change in the rights of the transferor with respect to the property after the transaction."); In re Feiler, 218 B.R. 957, 960 (Bankr. N.D. Cal. 1998), aff'd, 230 B.R.
164 (B.A.P. 9th Cir. 1999), aff'd, 218 F.3d 948 (9th Cir. 2000) ("Within the context of a fraudulent transfer, the definition of transfer is sufficiently broad to include a transfer that results in a modification of form or value of property transferred or a deposit into or withdrawal from a bank account.") (citations omitted); Kapila v. U.S. (In re Taylor), 386 B.R. 361, 369 (Bankr.S.D.Fla.2008) (debtor's waiver of an NOL carryback constitutes a transfer).
Here, Plaintiff simply hasn't alleged any change of rights in property after any particular transaction, nor has Plaintiff otherwise presented any authority for its proposition that the Defendants' failure to release the lien somehow constitutes a transfer. Basically, it appears here that what the estate MAY have is a right to enforce the Consent Judgment so as to compel extinguishment of the junior lien. But that question is not before the Court, and the Court takes no position on whether it is a viable cause of action or if the Debtor even has standing to prosecute it. For that reason, the Court is inclined to find that the Plaintiff has failed to state an actionable claim under the bankruptcy code, and therefore the Amended Complaint should be dismissed.
APPEARANCES REQUIRED
Debtor(s):
Markus Anthony Boyd Represented By
2:00 PM
Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Movant(s):
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Adv#: 6:18-01094 Boyd v. U.S. BANK et al
From: 6/26/18, 7/24/18, 7/25/18, 9/26/18 Also #12
EH
Docket 1
NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Defendant(s):
U.S. BANK Pro Se
SPECIALIZED LOAN SERVICING Pro Se
Series 2007-FFC First Franklin Pro Se
First Franklin Mortgage Loan Trust, Represented By
Erin M McCartney
2:00 PM
Plaintiff(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
8:30 AM
Also #2 EH
Docket 2
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
8:30 AM
Also #1 EH
Docket 3
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
Adv#: 6:17-01286 ASR Constructors Inc a California Corporation et a v. Gotte Electric, Inc. et
Complaint in Interpleader Nature of Suit: (02 (Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy))) (Bastian, James)
Trico-Savi Business Park L.P. - Dismissed 12/28/17
Western Alliance Bank, dba Torrey Pines Bank - Dismissed 2/1/18 Gotte Electric, Inc - Dismissed 3/14/18
Ledcor Construction Inc - Dismissed 3/26/18
From: 2/27/18 EH
Docket 1
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Defendant(s):
Gotte Electric, Inc. Pro Se Insurance Company Of The West Represented By
Jennifer Leland
David B Shemano
2:00 PM
Howard J Weg
Employment Development Represented By
Elisa B Wolfe-Donato
Angela Denise McKnight Pro Se
Steven Schonder Pro Se
United states of america Represented By Charles Parker
Carlin Law Group APC Represented By Kevin R Carlin
Ledcor Construction, Inc., a Represented By Daniel P Scholz
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18
Also # EH
Docket 630
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18
Also # EH
Docket 630
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18
Also # EH
Docket 630
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 12/19/17, 4/24/18 EH
Docket 306
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Fredman Lieberman Pearl LLP Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01116 Forte v. B & B Family, Incorporated
From: 7/24/18, 7/31/18 EH
Docket 1
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
Defendant(s):
B & B Family, Incorporated Represented By Todd L Turoci
Plaintiff(s):
Patricia Forte Represented By
D Edward Hays Laila Masud
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/18/18, 7/31/18 Also #2
EH
Docket 208
NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 7/8/15, 11/4/15, 3/2/16, 12/14/16, 12/13/17, 4/5/17, 6/7/17, 7/12/17, 8/2/17, 9/27/17, 10/4/17, 11/1/17, 12/6/17, 12/20/17, 2/28/18, 3/21/18, 6/20/18,
7/18/18, 7/31/18
Also #1 EH
Docket 1
02/28/2018
This hearing is vacated. The Status Conference is CONTINUED to March 21, 2018, at 2:00 p.m. The Court has provided notice to the parties of the continuance.
APPEARANCES WAIVED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Ryan F Thomas
2:00 PM
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
(Holding Date)
From: 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18, 1/31/18, 5/30/18
Also #4 EH
Docket 62
NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Movant(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
From: 5/14/14, 7/2/14, 12/10/14, 3/18/15, 4/22/15, 5/20/15, 7/22/15, 10/28/15, 12/2/15, 2/17/16, 3/2/16, 3/16/16, 4/27/16, 9/21/16, 12/14/16, 6/21/17, 1/24/18,
1/31/18, 5/30/18
Also #3 EH
Docket 1
NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Plaintiff(s):
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
Also #6 EH
Docket 54
This hearing on the Plaintiff’s Motion for Summary Judgment was continued from July 25, 2018. At the prior hearing, the Court continued the hearing for the Plaintiff and Defendant to have an opportunity to address the issue of willfulness under § 523(a)(6) in accordance with the Ninth Circuit BAP’s decision in In re Arden, 2015 WL 4068962, at *9 (9th Cir. BAP 2015)(citing Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871–72 (1989)).
PERSONAL SERVICE
The Defendant/Debtor again argues that under California law, issue preclusion is not available unless the defendant "has been personally served with summons or has actual knowledge of the existence of the litigation." (Docket 176 at 6). In support, the Debtor cites to In re Williams' Estate (Williams), 36 Cal. 2d 289, 297, 223 P.2d 248, 254 (1950), which was in turn cited with approval by In re Harmon, 250 F.3d 1240, 1246 (9th Cir. 2001). These cases, however, underscore that in order to limit the principle of collateral estoppel, there must be a "complete lack of knowledge on the part of a defendant of the action". Id. (emphasis added). In its prior tentative ruling, the Court noted that the failure of the Debtor’s declaration to address when or whether
2:00 PM
he had knowledge of the litigation that resulted in the default judgment was fatal. Now, having had the opportunity to file a new declaration, the Debtor still fails to address this issue instead reiterating that he was out of the country when the Plaintiff tried to effectuate service on him. The Plaintiff had previously indicated that due to the failure to locate the Debtor, that the Debtor was served via publication in the prior action and in response, the Debtor asserted that the failure of the Plaintiff to provide evidence of an order permitting service by publication should be determinative.
However, in reply, the Plaintiff has now provided a copy of the State Court’s Order for Publication. (Docket 177, at Ex. 1). Based on the foregoing evidence that Debtor was properly served by publication and, in particular due to Defendant/Debtor’s failure to address the issue of whether he had "complete lack of knowledge" of the State Court litigation, the Court finds that the Plaintiff’s objection that collateral estoppel should not apply to the instant case is overruled. Finally, the Debtor’s related arguments that the State Court Default Judgment is void as a matter of law for denying the Debtor due process are found to be unpersuasive.
WILLFULLNESS
"A ‘willful’ injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Barboza, 545 F.3d at 706, quoting Kawaauhau
v. Geiger, 523 U .S. 57, 61 (1998). To satisfy the willfulness requirement, it must be shown that the debtor either had "a subjective intent to harm or a subjective belief that harm is substantially certain." Su, 290 F.3d at 1144. When determining the debtor's intent under § 523(a)(6), there is a presumption that the debtor knows the natural consequences of his actions. Ormsby, 591 F.3d at 1206.
As a threshold matter, the Court overrules the Debtor’s objections to the declaration of the Deborah Slaieh.
As to the issue of "willfulness", the Court finds the Plaintiff’s Supplemental Brief persuasive. (Docket No. 175). In particular, the Supplemental Brief points to the specific allegations that the Debtor intended to injure the Plaintiff by filing litigation against him. The State Court Complaint contained numerous allegations that Debtor’s actions were "carried out in a deliberate, callous, malicious, despicable and intentional manner in order to injure and damage him." Additionally, the record before the trial
2:00 PM
court contained declaration from both the Plaintiff and Debtor’s ex-wife which supported a finding that the primary purpose behind the filing of the litigation was to injure the Plaintiff. Here, the Court finds that the State Court necessarily awarded punitive damages based on the Debtor’s intent to injure the Plaintiff and infers such intent to injure from a finding that the actor committed malice in fact based on the facts in the record detailed above, in addition to the facts set forth in the Plaintiff’s filings in support of the Motion for Summary Judgment. Based on the foregoing, the Court finds that the Plaintiff has met the requirements to satisfy California’s requirements for application of collateral estoppel on the issue of "intent to injure", and on that basis, the Court finds that the Default Judgment against the Debtor is determinative on the issue of willfulness under § 523(a)(6).
TENTATIVE RULING
Based on the Court’s prior tentative ruling, in addition to the instant tentative ruling, and having considered the arguments and filings of the parties, the Court finds that the Plaintiff has established that there is no genuine dispute as to any material fact and that the Plaintiff is entitled to judgment as a matter of law. The Court is inclined to GRANT the Motion in its entirety.
On December 18, 2013, Nabeel Slaieh ("Debtor") filed his petition for chapter 7 relief. On March 24, 2014, W E Jon Albrecht ("Plaintiff") filed the instant complaint to determine dischargeability of debt pursuant to § 523(a)(6). On June 13, 2018, the Plaintiff filed his Motion for Summary Judgment ("Motion"). On July 3, 2018, the Debtor filed his opposition to the Motion ("Opposition"). On the same date, the Debtor filed a substitution of attorney by which the Debtor indicated his intent to represent himself in propria persona going forward.
2:00 PM
As a threshold matter, the Court must address the manner in which the
Opposition was filed. Prior to the filing of the Substitution of Attorney Form, the Debtor was represented by George Saba ("Saba"). However, per the State Bar of California website, Mr. Saba has not been eligible to practice law in California since December 2017. Pursuant to the Court’s manual, Section 3.1(c) and Section 3.2(b), attorneys admitted to practice in the Central District of California, currently in good standing, are eligible to register as CM/ECF users with the rights to log in and file documents. Here, the Debtor, acting in pro per, is not eligible to file documents using CM/ECF and it was improper for Mr. Saba to use the CM/ECF system to improperly file a document for a party who he is no longer representing and who he is no longer able to represent given his ineligibility to practice law. Further, Section 3.2(d)(1) prohibits a registered user from knowingly permitting or causing to permit his or her login and password to be utilized by anyone. Here, Mr. Saba has violated the Court’s rules regarding CM/ECF filing. Based on the improper filing of the Opposition, the Court is inclined to issue an OSC why Mr. Saba’s CM/ECF rights should not be suspended or cancelled pursuant to Section 3.2(d)(3) of the Court Manual.
Based on the foregoing, the Court strikes the Opposition as improperly filed. A reply to the Opposition was filed on July 11, 2018 ("Reply"), as well as separately filed objections to the Declaration of Defendant in support of the Opposition (Docket No. 172).
A court may grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRBP 7056 (incorporating FRCP 56). In determining whether to grant a motion for summary judgment, courts must view the record and all inferences drawn from it in the light most favorable to the nonmoving party. Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th Cir.2011).
2:00 PM
In support of the Motion, Plaintiff requests that this Court take judicial notice of (1) The Certified Copy of Complaint for Malicious Prosecution, RJN, Ex. 1, (2) the Certified Copy of Summons filed January 25, 2011, RJN, Ex. 2, (3) the Certified Copy of Proof of Service of Summons, RJN, Ex. 3, and (4) the Copy of Judgment, RJN, Ex. 4. The Court takes judicial notice of these filings.
Nondischargeability under § 523(a)(6)
Section 523(a)(6) excepts from discharge debts arising from a debtor's willful and malicious injury to another person. Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 706 (9th Cir.2008). The willful and malice requirements must be analyzed separately, Carillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (2002), and the court must determine that both have been met, Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th Cir. 2010).
"A ‘willful’ injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Barboza, 545 F.3d at 706, quoting Kawaauhau
v. Geiger, 523 U .S. 57, 61 (1998). To satisfy the willfulness requirement, it must be shown that the debtor either had "a subjective intent to harm or a subjective belief that harm is substantially certain." Su, 290 F.3d at 1144. When determining the debtor's intent under § 523(a)(6), there is a presumption that the debtor knows the natural consequences of his actions. Ormsby, 591 F.3d at 1206.
"A malicious injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ " Su, 290 F.3d at 1146–47, quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001). "Within the plain meaning of this definition, it is the wrongful act that must be committed intentionally rather than the injury itself." Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005), citing Murray v. Bammer (In re Bammer), 131 F.3d 788, 791 (9th Cir.1997)("This four-part definition does not require a showing of biblical malice, i.e., personal hatred, spite, or ill will. Nor does it require a showing of an intent to injure, but rather it requires only an intentional act which causes injury."). "Malice may be inferred based on the nature of the wrongful act."
2:00 PM
Ormsby, 591 F.3d at 1206, citing Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554 (9th Cir.1991)(determining that, in the case of conversion, malice may be inferred).
In the instant action, the Plaintiff obtained a judgment ("Judgment) in State Court as against the Defendant based on a complaint for malicious prosecution (the "State Action"). The Plaintiff now moves under a theory of collateral estoppel for summary judgment finding that the Judgment is nondischargeable under § 523(a)(6).
Collateral Estoppel
A bankruptcy court may grant summary judgment based on the issue preclusive effect of an existing state court judgment. See Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). In doing so, it must apply the forum state's issue preclusion law. Id. See also 28 U.S.C. § 1738. Here, California preclusion law applies.
In California, issue preclusion bars relitigation of an issue when: 1) the issue sought to be precluded is identical to that decided in a prior proceeding; 2) the issue was actually litigated in the prior proceeding; 3) the issue was necessarily decided in the prior proceeding; and 4) the decision in the prior proceeding is final and on the merits. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990). Additionally, in California, issue preclusion may only be applied if it furthers underlying public policies. See id. at 343.
The party asserting issue preclusion bears the burden of establishing these requirements. Id. at 341. To do so, "[the] party must produce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Any reasonable doubt as to what was decided by a prior judgment should be resolved against allowing [issue preclusive] effect." Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th Cir.BAP1995), aff'd, 100 F.3d 110 (9th Cir.1996).
Here, the Plaintiff obtained a Judgment on a malicious prosecution action under California law. The Court now turns to whether ‘malicious prosecution’ satisfies the requirements for collateral estoppel under California law.
2:00 PM
Application of law to cause of action for malicious prosecution
In California, the common law tort of malicious prosecution provides a remedy for individuals subjected to maliciously instituted criminal and civil proceedings. In re Arden, 2015 WL 4068962, at *9 (9th Cir. BAP 2015)(citing Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871–72 (1989)). To establish a cause of action for malicious prosecution of a civil proceeding, the plaintiff must show "that the prior action (1) was commenced [or continued] by or at the direction of the defendant and was pursued to a legal termination in his [or her], plaintiff's, favor;
(2) was brought without probable cause; and (3) was initiated [or continued] with malice." Id., quoting Bertero v. Nat'l Gen. Corp., 13 Cal.3d 43, 50 (1974)(internal quotation marks omitted).
In Arden, the BAP specifically considered whether the tort of malicious prosecution satisfies both the willful and malicious prongs of § 523(a)(6):
"The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action." Estate of C. Delores Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir.2008) ("Tucker"), quoting Sheldon Appel Co., 47 Cal.3d at 874 (internal quotation marks omitted). However, the malice required in malicious prosecution "is not limited to actual hostility or ill will toward [the] plaintiff but exists when the proceedings are instituted primarily for an improper purpose." Albertson v. Raboff, 46 Cal.2d 375, 383 (Cal.1956). See also Tucker, 515 F.3d at 1030, quoting Sierra Club Found. v. Graham, 72 Cal.App. 4th 1135, 1147 (1999)("Sierra Club ").
The California Supreme Court has explained:
[T]he principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person instituting them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for
2:00 PM
the purpose of depriving the person against whom they are instituted of a beneficial use of his property; [or] (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.
Albertson, 46 Cal.2d at 383, quoting Rest., Torts § 676. Accordingly, in a malicious prosecution action, the proof may or may not establish a willful intent to injure on the part of the defendant.
Arden at *9-10.
As underscored in Arden, willfulness is not a separate and distinct element of the tort of malicious prosecution, though willfulness may be inferred from the debtor's intent in commencing or continuing litigation. Moreover, " ‘[m]erely because a tort is classified as intentional does not mean that any injury caused by the tortfeasor is willful.’ " Ditto v. McCurdy, 510 F.3d 1070, 1078 (9th Cir.2007), quoting Miller v.
J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 604 (5th Cir.1998). Here, the Judgment obtained against Defendant/Debtor was a default judgment and although the BAP found that ‘malicious prosecution’ likely satisfies the malice requirement under § 523(a)(6), it also specifically found that the ‘willfulness’ element was not necessarily decided by the state court because ‘willfullness’ is not required to enter judgment on a malicious prosecution cause of action. In Arden, the jury instructions indicated that the specific question of intent to injure was not posed to the jury. As such, the willfulness requirement was not necessarily decided or actually litigated by the state court. Similarly, the Judgment obtained by Plaintiff Albrecht did not require the State Court to consider, let alone determine whether Defendant Slaieh intended injury to Plaintiff. The Plaintiff’s Motion assumes the issue of intent was decided by the State Court. However, absent authority to distinguish the Arden case, whose reasoning this Court adopts as its own, the Motion does not satisfy the requirements for collateral estoppel because the Judgment is insufficient to establish the elements required under
§ 523(a)(6). It is possible that the issue of willfulness is subsumed by the state court’s determination that punitive damages were appropriate. However, such a theory must be addressed with reference to the Ninth Circuit BAP’s decision in In re Plyam that a California state court punitive damage award, standing alone, does not preclude relitigation of § 523(a)(6)'s "willful" intent requirement. In re Sangha, 678 F. App'x
2:00 PM
561, 562 (9th Cir. 2017); Plyam v. Precision Development, LLC (In re Plyam), 530
B.R. 456, 463–65 (9th Cir. BAP 2015) (holding that "under California law, the general definition of malice in fact encompasses less reprehensible states of mind" than § 523(a)(6)'s "willful" intent requirement).
Finally, although the Court has stricken the Opposition as improperly filed, the Court shall also address the one cognizable legal issue raised in the Opposition – namely, that the State Action Complaint was not personally served on him. As to this issue, the Court agrees with the Plaintiff that the Defendant’s declaration fails to address whether and when he learned of the State Action. The declaration of Defendant is conspicuously silent on these facts and as such determined to be not credible on the issue of lack of service.
Based on the foregoing, the Court is inclined to CONTINUE the Motion for additional briefing regarding the issue of "willfulness".
APPEARANCES REQUIRED.
Debtor(s):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Movant(s):
Nabeel Slaieh Represented By Stephen B Mashney
2:00 PM
Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
W.E. Jon Albrecht against Nabeel Slaieh. willful and malicious injury))
HOLDING DATE
From: 10/19/16, 12/14/16, 2/15/17, 3/29/17, 6/7/17, 10/25/17, 4/25/18, 7/25/18
Also #5 EH
Docket 1
NONE LISTED -
Debtor(s):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays
2:00 PM
David Wood Matthew Grimshaw
1:00 PM
From: 10/5/18 Also #2
EH
Docket 3
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
1:00 PM
Granting Related Relief
(FINAL HEARING)
Also #1 EH
Docket 8
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
10:00 AM
MOVANT: HSBC BANK USA N.A.
EH
Docket 180
Service is Proper Opposition: Yes
Parties to apprise Court of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Movant(s):
HSBC BANK USA Represented By Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 87
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Sheila Marie Dejesa Represented By Lisa H Robinson John F Brady
Movant(s):
U.S. Bank National Association, not Represented By
Angie M Marth Erin M McCartney
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
From: 5/15/18, 6/26/18, 8/1/18, 8/21/18 EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Yelena Gurevich
Movant(s):
Wells Fargo Bank, N.A. Represented By Jamie D Hanawalt Jessica L Carter
10:00 AM
Trustee(s):
Tavon Taylor
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PROVIDENT SAVINGS BANK
EH
Docket 41
NONE LISTED -
Debtor(s):
Ryan J. Watson Represented By Michael Smith Sundee M Teeple
Movant(s):
Provident Savings Bank Represented By John A Boyd
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 163
NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Movant(s):
HSBC Bank USA, National Represented By Matthew R. Clark III Keith Labell
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 46
NONE LISTED -
Debtor(s):
Candice Maria Borrego Represented By Andy C Warshaw
Movant(s):
WELLS FARGO BANK, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
From: 9/25/18 EH
Docket 36
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Joseph Manuel Ruiz Represented By April E Roberts
Joint Debtor(s):
Shannon Elizabeth Ruiz Represented By April E Roberts
10:00 AM
Movant(s):
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 52
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) co-debtor stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee Jonetta A Graves
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION
From: 6/13/18, 8/28/18, 9/11/18 EH
Docket 10
NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
Seterus, Inc. as the authorized Represented By Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 26
Service is Proper Opposition: None
Noting that Debtor has failed to file an opposition to the instant motion, which the Court deems consent to the relief requested pursuant to Local Rule 9013-(1)(h), the Court is inclined to GRANT the relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Hugo Perez Pro Se
Movant(s):
THE BANK OF NEW YORK Represented By Sean C Ferry
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Ryan Yance Bradley Represented By Brian J Soo-Hoo
Joint Debtor(s):
Jessica Lee Bradley Represented By Brian J Soo-Hoo
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 24
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Rachael Dene Thomas Pro Se
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: BALBOA THRIFT & LOAN
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT annulment of the automatic stay retroactive to the petition date as to Movant. GRANT request under ¶
2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Juan A Flores Rodriguez Represented By Paul Y Lee
Joint Debtor(s):
Jocelyn Chavez Represented By Paul Y Lee
Movant(s):
Balboa Thrift & Loan Represented By
10:00 AM
Trustee(s):
Keith E Herron
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC.
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Renard Louis Hamilton Pro Se
Joint Debtor(s):
Regina Elizabeth Hamilton Pro Se
Movant(s):
Americredit Financial Services, Inc., Represented By
Sheryl K Ith
10:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: PARTNERS FEDERAL CREDIT UNION
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from the automatic stay pursuant to § 362(d)(2) because the evidence submitted by Movant indicates that there is equity in the property.
GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Leo Peter Benitez Represented By Todd L Turoci
Joint Debtor(s):
Kathryn Jewell Benitez Represented By Todd L Turoci
10:00 AM
Movant(s):
Partners Federal Credit Union Represented By Yuri Voronin
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
92881-6625
MOVANT: FIRST MIDWEST BANK
EH
Docket 13
NONE LISTED -
Debtor(s):
Tina M Coca Represented By
Emilia N McAfee
Movant(s):
First Midwest Bank, its successors Represented By
Nichole Glowin
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST N.A.
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Juan Alvarado Represented By Bernal P Ojeda
Joint Debtor(s):
Maria Susana Guzman Represented By Bernal P Ojeda
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Christina J O
10:00 AM
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 10
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Hank William Romine Represented By Todd L Turoci
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Julisa V Martinez Represented By William Radcliffe
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: POSITIVE INVESTMENT INC.
EH
Docket 11
Service is Proper Opposition: None
The Court notes that the request for relief section of the motion [Dkt. No. 11, pg. 5] does not actually request relief from the automatic stay. Therefore, the Court is inclined to DENY requests under ¶¶ 2 and 6 as premature.
APPEARANCES REQUIRED.
Debtor(s):
Harold Lundy Pro Se
Joint Debtor(s):
Clare Ann Lundy Pro Se
Movant(s):
Positive Investment, Inc. Represented By Helen G Long
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 8
Service is Proper Opposition: None
The Court notes that rather than attach the appropriate exhibits, it appears that Movant has inadvertently replaced those exhibits with a second copy of the motion. As a result, Movant has failed to establish that it has a security interest in the subject property nor has Movant established the fair market value of the property. Therefore, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Keith T. Marshall Represented By Christopher J Langley
Joint Debtor(s):
Sonia M. Marshall Represented By Christopher J Langley
10:00 AM
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: CAB WEST LLC
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Luis E. Sanchez Represented By William E Windham
Joint Debtor(s):
Martha J. Amaro De Sanchez Represented By William E Windham
Movant(s):
Cab West LLC Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: NORBERTO CALALAY JIMENEZ AND ARACELI CORRALES JIMENEZ
EH
Docket 10
The Court is inclined to DENY the motion. Debtors’ previous case was dismissed for failure to make pre-confirmation plan payments. The instant motion does not address the cause for dismissal or identify any change in financial circumstances in order to overcome the presumption of bad faith arising under § 362(c)(3)(C).
APPEARANCES REQUIRED.
Debtor(s):
Norberto Calalay Jimenez Represented By Christopher J Langley
Joint Debtor(s):
Araceli Corrales Jimenez Represented By Christopher J Langley
Movant(s):
Norberto Calalay Jimenez Represented By Christopher J Langley
Araceli Corrales Jimenez Represented By Christopher J Langley
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: RICKY ANTONIO SCOTT AND SHEMIDA SHILONI SCOTT
From: 9/25/18 EH
Docket 14
09/25/2018
The Debtors’ prior case was dismissed on July 25, 2018, for failure to submit 2017 federal and state tax returns to the Trustee. The Debtors and their counsel did not appear at the hearing and the case was dismissed. The Debtors have obtained new counsel. In support of their Motion, they assert that they believed they had complied with the Trustee’s request for the returns by submitting Debtor Husband’s returns but failed to notify the Trustee that the co-debtor was not required to file taxes.
Additionally, the Debtors assert that because their plan proposed a 100% payout to creditors, they were not require to provide refund monies to the estate.
Here the Debtors request that their stay be continued as to the foreclosing creditor, Wells Fargo, who has a sale scheduled for September 26, 2018.
The Debtors have provided sufficient evidence to overcome the § 362(c)(3)(C) presumption that the case was not filed in good faith given that a relief from stay was pending in the prior case as to Wells Fargo when the case was dismissed.
Based on the foregoing, the Court is inclined to GRANT the Motion as to Wells
10:00 AM
Fargo, the foreclosing creditor.
APPEARANCES REQUIRED.
Debtor(s):
Ricky Antonio Scott Represented By Eva M Hollands
Joint Debtor(s):
Shemida Shiloni Scott Represented By Eva M Hollands
Movant(s):
Ricky Antonio Scott Represented By Eva M Hollands
Shemida Shiloni Scott Represented By Eva M Hollands
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01286 ASR Constructors Inc a California Corporation et a v. Insurance Company
Complaint in Interpleader Nature of Suit: (02 (Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy))) (Bastian, James)
Trico-Savi Business Park L.P. - Dismissed 12/28/17
Western Alliance Bank, dba Torrey Pines Bank - Dismissed 2/1/18 Gotte Electric, Inc - Dismissed 3/14/18
Ledcor Construction Inc - Dismissed 3/26/18
From: 2/27/18, 10/9/18 EH
Docket 1
NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Defendant(s):
Insurance Company Of The West Represented By
Jennifer Leland
2:00 PM
David B Shemano Howard J Weg
Employment Development Represented By
Elisa B Wolfe-Donato
Angela Denise McKnight Pro Se
Steven Schonder Pro Se
United states of america Represented By Charles Parker Najah J Shariff
Carlin Law Group APC Represented By Kevin R Carlin
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18
Also #28 & 29 EH
Docket 630
NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18
Also #27 & #29 EH
Docket 630
NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18
Also #27 & 28 EH
Docket 630
NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 12/19/17, 4/24/18, 10/9/16 EH
Docket 306
On May 11, 2016, Allied Injury Management, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On June 6, 2016, the Court approved the employment application of Fredman Lieberman Pearl LLP to serve as counsel to Debtor ("Applicant"). On November 17, 2016, the Court approved an application to expand the scope of Applicant’s representation. On November 30, 2018, the Court ordered the appointment of a Chapter 11 Trustee and, five days later, David Goodrich was appointed as the Chapter 11 Trustee.
On October 6, 2017, Applicant filed an application for compensation for an aggregate amount of $282,682.13 covering the period of May 11, 2016 to December 5, 2016. Applicant and UST have twice stipulated to a continuance of the hearing.
Pursuant to 11 U.S.C. § 330(a)(1), the court may award reasonable compensation for actual, necessary services. The court has an independent duty to review the fee application in the absence of objections. See 11 U.S.C. § 330(a)(2). The court "will not indulge in extensive labor and guesswork to justify a fee for an attorney who has not done so himself." In re Taylor, 66 B.R. 390 (Bankr. W.D. Pa. 1986).
11 U.S.C. § 330(a)(3) provides factors to be considered in determining the reasonableness of requested compensation. These factors include time spent, rates charged, necessity of the service, reasonableness of the service, expertise of attorney, and comparable market rates.
2:00 PM
First of all, the Court notes that Applicant’s fee application is somewhat unclear. The application requests $278,079 for professional fees related to the main bankruptcy case and three adversary proceeding, and a summary identifying the amount of fees in each proceeding is provided on the tables that spans pages 6 and 7 of the fee application. That tables identifies fees in the amount of $242,270.50 in the main case. Nevertheless, the very next table, which deals with categories of tasks performed and spans pages 7-8 of the fee application, only identifies
$227,244.50 in fees for the main case. It does not appear that the fee application addresses or explains this discrepancy of $15,026, and, therefore, the Court is inclined to reduce the fee application by $15,026.
The "Summary of Fees for the Main Case" table is additionally problematic because of the fact that the majority of the rows and tables in this summary do not add up to the identified total. While the miscalculations are not egregious, and are sometimes to the disadvantage of Applicant, the errors force put the credibility of the fee application as a whole, including its more than 100 pages of billing entries, into question. The inherent contradictions of the fee application continue when comparing the summary tables with the more detailed tables in the application’s sections on the adversary matters.
Additionally, the Court notes that the first two pages of Exhibit 4 include billing for services provided which predate the effective date of the employment order. Those billing entries related to services provided by Mr. Lieberman are also lumped entries. For those two reasons, the Court is inclined to reduce the fee application by an additional amount of $6,068.
Otherwise, the Court has reviewed the fee application and finds the requested fees and costs to be generally reasonable. The Court is inclined to CONTINUE the hearing for Counsel to file an amended application correcting the arithmetical errors and apparent contradictions throughout the fee application.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Fredman Lieberman Pearl LLP Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01116 Forte v. B & B Family, Incorporated
From: 7/24/18, 7/31/18, 10/9/18 EH
Docket 1
NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
Defendant(s):
B & B Family, Incorporated Represented By Todd L Turoci
Plaintiff(s):
Patricia Forte Represented By
D Edward Hays Laila Masud
2:00 PM
From: 8/21/18 EH
Docket 7
NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
$164280.00, Expenses: $7207.77. (Turoci, Todd) EH
Docket 414
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also #35 & #36 EH
Docket 297
NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
GlassRatner Advisory & Capital Pro Se
2:00 PM
Also #34 & #36 EH
Docket 292
NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
Winthrop Couchot Golubow Represented By Robert E Opera Richard H Golubow Andrew B Levin
2:00 PM
Also #34 & #35 EH
Docket 295
NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Movant(s):
Troutman Sanders LLP Represented By Robert E Opera
2:00 PM
(FINAL HEARING)
From: 8/20/18, 9/25/18 Also #38 & #39
EH
Docket 11
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich
2:00 PM
(FINAL HEARING)
From: 8/20/18, 9/25/18 Also #37 & #39
EH
Docket 12
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich
2:00 PM
(FINAL HEARING)
From: 8/20/18, 9/25/18 Also #37 & #38
EH
Docket 7
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich
3:00 PM
Approving the Assumption and Assignment of Executory Contracts; and (3)
Granting Related Relief
(FINAL HEARING)
From: 10/15/18 Also #41
EH
Docket 8
NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
3:00 PM
From: 10/5/18, 10/15/18 Also #40
EH
Docket 3
NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
10:00 AM
EH
Docket 11
NONE LISTED -
Debtor(s):
Ashley R Smith Pro Se
Joint Debtor(s):
Justin C Smith Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Mark Stephen Shuttlesworth Represented By Michael E Clark
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
Richard Anthony Moreno Represented By Michael E Clark
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
Audrey Yasui-Iwata Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
Also #6 EH
Docket 14
NONE LISTED -
Debtor(s):
Raul Zamora Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
Also #5 EH
Docket 15
NONE LISTED -
Debtor(s):
Raul Zamora Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 30
10/17/2018
No opposition has been filed. Service was Proper.
The Final Report of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 2,781 Trustee Expenses: $ 129.54
The TFR is approved and the trustee may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Christina Suzanna Faris Pena Represented By Dina Farhat
Joint Debtor(s):
Hector Pena Represented By
Dina Farhat
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 30
10/17/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Application of the associated professional, the following administrative claims will be allowed:
Trustee Fees: | $ 3,533.69 |
Trustee Expenses: | $ 98.74 |
Attorney Fees: | $10,190 |
Attorney Costs: | $394.24 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
William Redfield Barlow III Represented By Michael E Clark Heather J Canning
11:00 AM
Joint Debtor(s):
Lindsay Marie Barlow Represented By Michael E Clark Heather J Canning
Trustee(s):
Robert Whitmore (TR) Represented By Julie Philippi Todd L Turoci
11:00 AM
Docket 164
10/17/18
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Applications of the associated professionals, the following administrative claims will be allowed:
Trustee Fees: | $ 27,771.40 |
Attorney Fees: | $45,196.88 |
Attorney Costs: | $2,322.45 |
Accountant Fees: | $2,572 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Ann Lee Eid-Brooks Represented By Vincent Renda
11:00 AM
Joint Debtor(s):
Darrell Edward Brooks Jr. Represented By Vincent Renda
Trustee(s):
Robert Whitmore (TR) Represented By Caroline Djang
11:00 AM
Docket 20
10/17/18
BACKGROUND
On July 16, 2018, Rogelio Delgado ("Debtor") filed his petition for chapter 7 relief. The case was dismissed on September 17, 2018, after the Debtor failed to file pay stubs required under Section 521(a)(1)(B)(iv). On September 24, 2018, the Debtor filed his Motion to Reconsider Dismissal.
The Debtor filed the deficient document on September 24, 2018. Prior to the dismissal, the Trustee had filed on August 23, 2018, a Report of No Distribution indicating the case is a no asset case.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the Motion.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Rogelio Hernandez Delgado Represented By Robert G Uriarte
Movant(s):
Rogelio Hernandez Delgado Represented By
11:00 AM
Trustee(s):
Robert G Uriarte Robert G Uriarte Robert G Uriarte
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 47
10/17/2018
On April 13, 2018, Desert Ice Castle, LLC ("Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Managing Member and alleged sole owner is Anthony Liu ("Liu"). The petition indicated that the Debtor owned assets totaling $1,864.61 and had liabilities totaling $860,500. The Debtor listed two claimants in Schedule F, one claim of Andrzej Luczynski ("Luczynski") in the amount of $800,000 (as disputed) and a claim of Lui Bin in the amount of $60,500. On September 12, 2018, Luczynski filed Claim No 1-1 in the amount of $3,200,000 based on a State Court Action for "unlawful termination [of] joint venture; conversion; unlawful eviction". Luczynski has further indicated that a trial date for the State Court Action is set for November 2, 2018. The Docket reflects that a Motion to Disallow Claim No. 1 has been set for hearing on October 24, 2018.
On September 10, 2018, the Debtor filed a motion to dismiss the bankruptcy ("Motion"). A notice of Non-opposition was filed by Lui Bin on the same date.
Opposition to the Motion was filed by Luczynski and the Trustee on October 3, 2018 (the "Oppositions"). The Debtor filed an Omnibus Reply to the Oppositions on October 10, 2018 ("Reply").
The Debtor seeks dismissal pursuant to § 305(a)(1). Section 305(a)(1)
11:00 AM
provides as follows:
The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if—
the interests of creditors and the debtor would be better served by such dismissal or suspension;
11 U.S.C. § 305(a)(1); In re Eastman, 188 B.R. 621, 625 (9th Cir. BAP 1995). The
courts that have construed § 305(a)(1) are in general agreement that abstention in a properly filed bankruptcy case is an extraordinary remedy, and that dismissal is appropriate under § 305(a)(1) only in the situation where the court finds that both "creditors and the debtor" would be "better served" by a dismissal. Id. (internal citations omitted). The legislative history uses the following example of such a situation:
an arrangement is being worked out by creditors and the debtor out of court, there is no prejudice to the rights of creditors in that arrangement, and an involuntary case has been commenced by a few recalcitrant creditors to provide a basis for future threats to extract full payment.
H.R.Rep. No. 95–595, 95th Cong., 1st Sess. 325 (1977); 1978 U.S.C.C.A.N. 5963,
6281.
As the statutory language and legislative history demonstrate, the test under § 305(a) is not whether dismissal would give rise to a substantial prejudice to the debtor. Nor is the test whether a balancing process favors dismissal. Rather, the test is whether both the debtor and the creditors would be "better served" by a dismissal.
In support of the Motion, the Debtor argues that (1) Luczynski will suffer no prejudice from dismissal of the case because the amended complaint filed in the State Action dismissed the Debtor from the complaint; (2) Creditor Lui Bin will be paid in full; (3) the only parties benefitting from continuation of the case are the Trustee and his professionals. Although the Debtor has seemingly been dismissed from the underlying State Court litigation, the State Action retains allegations that the Debtor is an alter ego of the named defendant, Liu. (Roman Decl. ¶ 2).
The Oppositions essentially assert that (1) Luczynski has filed a proof of claim that constitutes prima facie evidence of a claim; and (2) avoidable insider payments
11:00 AM
have been discovered that will benefit the Debtor’s creditors.
On the current record, the Court is inclined to DENY the Motion. Here, assuming (as the Court must at this juncture) that Luczynski may have an enforceable claim against the Debtor’s estate, dismissal is likely to result in plain legal prejudice to Luczynski because the Debtor and its principal/sole shareholder seek to payoff the only other unsecured creditor in full in order to force a dismissal. The Debtor’s strategy is a transparent violation of the bankruptcy code’s command that similarly situated creditors must be treated similarly. Additionally, the Court is unconvinced that the dismissal of the Debtor from the underlying State Court Action is a sufficient basis to find that the Debtor has no remaining liability to Luczynski. In fact, the Debtor’s evidence confirms that Luczynski’s complaint continues to argue that the Debtor and Liu are alter egos. For now, the Court agrees with the Trustee and Luczynski that dismissal would be premature at this point.
Based on the foregoing, the Court finds that Debtor has not met its burden of demonstrating that both the Debtor and creditors will be "better served" by dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
11:00 AM
U.S.C. § 341(a) Meeting of Creditors From: 9/26/18
Also #11 EH
Docket 42
10/17/2018
On April 13, 2018, Desert Ice Castle, LLC ("Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Managing Member and alleged sole owner is Anthony Liu ("Liu"). The petition indicated that the Debtor owned assets totaling $1,864.61 and had liabilities totaling $860,500. The Debtor listed two claimants in Schedule F, one claim of Andrzej Luczynski ("Luczynski") in the amount of $800,000 (as disputed) and a claim of Lui Bin in the amount of $60,500. On September 12, 2018, Luczynski filed Claim No 1-1 in the amount of $3,200,000 based on a State Court Action for "unlawful termination [of] joint venture; conversion; unlawful eviction". Luczynski has further indicated that a trial date for the State Court Action is set for November 2, 2018. The Docket reflects that a Motion to Disallow Claim No. 1 has been set for hearing on October 24, 2018.
On August 23, 2018, the Trustee filed a Motion to Compel Debtor and Counsel’s Appearance at Continued 341(a) Meeting of Creditors ("Motion"). The Motion details Liu and the Debtor’s Counsel’s failures to appear at 6 separate scheduled 341(a) meetings of creditors, including failing to appear at the initial meeting. (Speier Decl. ¶¶3-8). The Debtor filed an Opposition to the Motion on September 12, 2018. In the Opposition, the Debtor asserts that negotiations and "informal" meetings with Karl Anderson wherein the Debtor provided numerous documents to the Trustee through Mr. Anderson serve to demonstrate that the Debtor
11:00 AM
has been cooperating with the Trustee. The Trustee filed his Reply on September 19, 2018.
The language of § 343 is clear that the Debtor "shall submit to examination under oath at the meeting of creditors." The Trustee’s declaration in Reply to the Opposition indicates that he specifically told Liu and his Counsel that their attendance at the 341(a) was mandatory. Absent evidence that they were formally excused from appearance at the 341(a) meeting of creditors, the Debtor’s evidence is inapposite.
Informal cooperation does not obviate the code’s requirement that the Debtor submit to questioning under oath at a scheduled 341(a) meeting of creditors. The Stoddard declaration’s recitation of interactions with Mr. Anderson are unavailing. It is nowhere indicated that Mr. Anderson was ever directly asked by Counsel for the Debtor whether the discussions obviated the need to attend the 341(a) meetings of creditors. The Debtor appears to be under the misconception that a formal command of some kind was required. No such demand is required. The statute is clear that attendance is mandatory and the Debtor does not dispute that notice of the 341(a) meetings of creditors were received. The Debtor’s failure to address this requirement of the code is inexcusable.
Based on the foregoing, the Court is inclined to GRANT the Motion in its entirety. APPEARANCES REQUIRED.
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Docket 48
10/17/2018
BACKGROUND
On July 27, 2017, Martha Lorena Soto Jimenez ("Debtor") filed a petition for chapter 7 relief. Todd Frealy is the duly appointed chapter 7 trustee ("Trustee").
Among the assets of the estate is certain real property located at 1475 Capri Lane in San Jacinto, CA 92583. (the "Property").
On September 17, 2018, the Trustee filed his Motion For Sale of Property of the Estate under Section 363(b) ("Motion").
Service was proper and no opposition has been filed.
Sale of Estate Property Pursuant to Section 363(b)
The trustee, after notice and a hearing, may sell property of the estate. 11
U.S.C. § 363(b)(1); see also Commodity Futures Trading Comm’n v. Weintraub, 471
U.S. 343, 352 (1985). The sale must be in the best interests of the estate and the price must be fair and reasonable. In re Canyon Partnership, 55 B.R. 520 (Bankr. S.D. Cal. 1985); see also In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991)(sale must have fair/reasonable price, accurate/reasonable notice to creditors and sale made in good faith). The trustee must articulate some "business justification" for selling estate property out of the "ordinary course of business" before the court may approve the transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983); In re Ernst Home Ctr., Inc., 209 B.R. 974, 979 (Bankr. W.D. Wash. 1997). Objections to sale that are based on inadequacy of price are often resolved the court ordering an auction, which may occur in open court. Simantrob v. Claims Prosecutor,
11:00 AM
LLC (In re Lahijani), 325 B.R. 282, 287 (9th Cir. BAP 2005) citing Fed. R. Bankr. P. 6004(f).1
The Trustee seeks an order authorizing him to sell the Property to Right Solutions LLC ("Buyer"), or in the alternative, to the highest bidder at the hearing on the Motion. The Trustee indicates that the Property is subject to property tax liens totaling $2,664, $130,000 in favor of Carrington Mortgage Services, and $10,000 in favor of the Law Office of Curtis R. Aijala. The Motion proposes that all liens will be paid off from escrow. The Trustee’s analysis indicates that after payment of liens on the Property and deducting closing costs, including broker’s commissions, the net proceeds for the estate is estimated to be $68,106 based on a proposed sales price of
$229,000. Claims totaling $17,198.63 have been filed in the case. Based on these figures, the sale should enable the Trustee to pay allowed claims in full. The Court finds that the trustee’s proposed sale is in the best interests of the estate and the price is fair and reasonable.
Generally, bidding procedures must be untainted by self-dealing, encourage bidding and be fair/reasonable/serve the best interests of the estate. See In re Crown Corp., 679 F.2d 774 (9th Cir. 1982). Here, the Trustee has proposed bidding procedures which require an initial overbid of $10,000 above the proposed purchase price of $229,000, with each additional bid in increments of $5,000, and a deposit of
$23,900 provided to the Trustee 7 days prior to the sale. The Trustee’s proposed bidding procedures are reasonable, under the circumstances, and are therefore approved.
The proposed sale has been brought in good faith and has been negotiated on an "arms- length" basis. The court, in Wilde Horse Enterprises, set forth the factors in
11:00 AM
considering whether a transaction is in good faith. The court stated:
‘Good faith’ encompasses fair value, and further speaks to the integrity of the transaction. Typical ‘bad faith’ or misconduct, would include collusion between the seller and buyer, or any attempt to take unfair advantage of other potential purchasers. And, with respect to making such determinations, the
court and creditors must be provided with sufficient information to allow them to take a position on the proposed sale.
Id. at 842 (citations omitted).
Here, the Trustee marketed the Property via Keller Williams Realty and KW Commercial, which marketed the Property and its marketing efforts are detailed in the declaration of W. Darrow Fiedler. The sale appears to be made in good faith.
Based on the foregoing, the Court is inclined to GRANT the Motion as follows:
Approving the sale of the Property to the Buyer or successful overbidder;
Providing that the Trustee is authorized and empowered to execute and deliver on behalf of the estate any and all documents as reasonably may be necessary to implement the terms of the proposed sale;
Providing that the notice given by the Trustee in connection with the sale and hearing thereon is adequate, sufficient, proper and complies with all applicable provisions of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure;
Approving the overbid procedures;
Approving payment of liens and costs of sale directly from escrow; and
Waiving the 14-day stay prescribed by rule 6004(h) of the Federal Rules of Bankruptcy Procedure.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Martha Lorena Soto Jimenez Represented By Marlin Branstetter
Movant(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
11:00 AM
EH
Docket 189
On February 26, 2016, Samuel and Greeta Dason (collectively, "Debtors") filed their petition for chapter 7 relief. Lynda Bui is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate is certain real property located at 22780 Vista Grande Way, Grand Terrace, CA 92513 (the "Property"). On August 22, 2018, the Trustee filed a Motion to Approve Compromise Under Rule 9019 (the "Motion"). In support of the Motion, the Trustee asserts that there is a dispute with the Debtors regarding the availability of equity in the Property for the benefit of creditors. The Trustee obtained a higher opinion of value from her real estate broker than the Debtor obtained. However, the Debtor has also countered that the arrears owed on the Property and a solar equipment lease encumbering the Property would impact the availability of equity for creditors. Based on these facts, the Trustee proposes approval of a settlement by which Greeta Dason will pay $20,000, representing non-exempt equity in the Property.
On September 6, 2018, Creditor Juddy Olivares ("Creditor") filed her Opposition to the Motion. The Debtor filed his reply to the Opposition on October 10, 2018 ("Reply"). The Creditor has now withdrawn her Opposition.
Rule 9019(a) authorizes the bankruptcy court to approve a compromise or settlement on the trustee's motion and after notice and a hearing. The bankruptcy court must consider all "factors relevant to a full and fair assessment of the wisdom of the proposed compromise." Protective Comm. for Indep. Stockholders of TMT Trailer
11:00 AM
Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S. Ct. 1157, 20 L. Ed. 2d 1 (1968). In
other words, the bankruptcy court must find that the settlement is "fair and equitable" in order to approve it. Martin v. Kane (In re A & C Props.), 784 F.2d 1377, 1381 (9th Cir. 1986).
In conducting this inquiry, the bankruptcy court must consider the following
factors:
Id.
(a) the probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
The bankruptcy court enjoys broad discretion in approving a compromise because it "is uniquely situated to consider the equities and reasonableness [of it] " United
States v. Alaska Nat'l Bank (In re Walsh Construction, Inc.), 669 F.2d 1325, 1328 (9th Cir. 1982). As stated in A & C Props.:
The purpose of a compromise agreement is to allow the trustee and the creditors to avoid the expenses and burdens associated with litigating sharply contested and dubious claims. The law favors compromise and not litigation for its own sake, and as long as the bankruptcy court amply considered the various factors that determined the reasonableness of the compromise, the court's decision must be affirmed.
Id. (citations omitted).
On the other hand, even though the bankruptcy court has wide latitude in approving compromises, its discretion is not completely unfettered. See Woodson v. Fireman's Fund Ins. Co. (In re Woodson), 839 F.2d 610, 620 (9th Cir. 1988). The trustee bears the burden of proving to the bankruptcy court that the settlement is fair and equitable and should be approved. In re A&C Props., 784 F.2d at 1382.
On this record, the Court agrees with the Trustee that the expense and delay attendant to a sale of the Property is not likely to yield substantially more than the Trustee is able to obtain via the compromise. The Trustee’s evidence supports a finding that approval is in the best interests of the creditors and is reasonable under the facts of this case.
For the foregoing reasons, in deference to the Trustee’s business judgment and finding that the proposed compromise is "fair and equitable" under the circumstances, the
11:00 AM
Court is inclined to GRANT the Motion in its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
From: 8/30/18, 9/27/18 EH
Docket 20
- NONE LISTED -
Debtor(s):
Latoya Joy Armstrong Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #17 EH
Docket 46
On November 20, 2017 ("Petition Date"), Sean Karadas ("Debtor") filed his petition for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate are Small Business Administration loan funds totaling $327,653 (the "SBA Loan") obtained by the Debtor from First Home Bank for his wholly owned corporation, Pacific Trium, Inc. ("Pacific Trium") Trustee has evidence that almost immediately following the disbursement of loan funds to the Debtor, that the Debtor transferred the funds from Pacific Trium’s account to his personal account on May 31, 2017, and then from his account to his son’s account on June 20, 2017. First Home Bank has filed a dischargeability action against the Debtor objecting to the discharge of the Debtor’s personal guaranty and alleging fraud and misrepresentation by Debtor in obtaining the SBA Loan.
Trustee requests an order compelling turnover of the SBA Loan Proceeds, or their value, under penalty of civil contempt. Service was proper and no opposition has been filed.
Under the Bankruptcy Code, a debtor has a duty to surrender property of the estate to the Trustee. 11 U.S.C. § 521(4). Furthermore, a trustee has the duty to "collect and reduce to money the property of the estate for which such trustee
11:00 AM
serves " § 704(1).
The Trustee has established that the SBA Loan Proceeds likely constitute property of the estate under § 541 and that the Debtor likely retains control of the SBA Loan Proceeds. However, notwithstanding the likelihood that Debtor retains control of the SBA Loan Proceeds, the evidence indicates that the Motion should also have been served on the Debtor’s son, Turhan Karadas.
Based on the foregoing, the Court is inclined to CONTINUE the hearing to November 14, 2018, at 11:00 a.m. for the Debtor to serve the Debtor’s son.
APPEARANCES REQUIRED.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Movant(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Also #16 EH
Docket 42
10/17/2018
This matter is taken off calendar as duplicative of Matter No. 18, Docket No. 11 in the adversary case, 18-ap-01123.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Movant(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01123 First Home Bank v. Karadas
EH
Docket 11
On November 20, 2017 ("Petition Date"), Sean Karadas ("Debtor") filed his petition for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate are Small Business Administration loan funds totaling $327,653 (the "SBA Loan") obtained by the Debtor from First Home Bank for his wholly owned corporation, Pacific Trium, Inc. ("Pacific Trium") Trustee has evidence that almost immediately following the disbursement of loan funds to the Debtor, that the Debtor transferred the funds from Pacific Trium’s account to his personal account on May 31, 2017, and then from his account to his son’s account on June 20, 2017.
On May 24, 2018, First Home Bank filed a dischargeability action under §§ 523 and 727 against the Debtor objecting to the discharge of the Debtor’s personal guaranty and alleging fraud and misrepresentation by Debtor in obtaining the SBA Loan.
On September 11, 2018, First Home Bank filed a Motion for Consent Order re: Claim of Creditor First Home Bank as Nondischargeable ("Motion"). The Motion specifically seeks approval of the parties’ stipulation as to nondischargeability of the personal guaranty and separately seeks dismissal of the remaining claims. Although the Motion acknowledges that parties in interest may timely file a response to the Motion to pursue the §727 action, the Motion is deficient in that the proof of service fails to indicate service on the Debtor’s creditors. To date, the Court’s claims register reflects that 17 claims have been filed against the Debtor’s estate and as such, there are interested parties who may be interested in pursuing the §727 action.
2:00 PM
Based on the foregoing, the Court is inclined to CONTINUE the hearing on the Motion to November 14, 2018, at 11:00 a.m. for the Debtor to serve the Debtor’s creditors.
APPEARANCES REQUIRED.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Movant(s):
First Home Bank Represented By Joshua N Kastan
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01161 Simons (TR) v. Thompson
EH
Docket 1
- NONE LISTED -
Debtor(s):
Thomas Franklin Shea Represented By Richard J Hassen
Defendant(s):
Joseph Edward Thompson Pro Se
Joint Debtor(s):
Marta Rose Shea Represented By Richard J Hassen
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Represented By Wesley H Avery
2:00 PM
Adv#: 6:18-01040 Cisneros v. Rose et al
(Defendant Connie Flach Dismissed 6/5/18) (Defendant John Rose Dismissed 6/20/18) (Defendant Tammy Rose Dismissed 6/20/18) (Defendant Brennan Rose Dismissed 6/20/18) (Defendant KayLynne Rose Dismissed 6/20/18) (Defendant Joseph Harter Dismissed 10/12/18)
From: 4/25/18, 6/27/18, 8/22/18 EH
Docket 1
08/22/2018
The Status Conference is CONTINUED to October 17, 2018, 2:00 p.m. per the Plaintiff's request for time to finalize a settlement.
APPEARANCES WAIVED.
Debtor(s):
Sandra Lou Harter Represented By Carey C Pickford
2:00 PM
Defendant(s):
John Rose Represented By
Dina Farhat
Tammy Rose Represented By
Dina Farhat
Brennan Rose Represented By Dina Farhat
KayLynne Rose Represented By Dina Farhat
Plaintiff(s):
A. Cisneros Represented By
Anthony A Friedman
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/5/18 Also #22
EH
Docket 65
- NONE LISTED -
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Movant(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
2:00 PM
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:17-01138 Musharbash et al v. Musharbash et al
From: 9/20/17, 2/7/18, 3/7/18, 8/15/18, 9/5/18 Also #21
EH
Docket 1
- NONE LISTED -
Debtor(s):
Issa M Musharbash Represented By Brian J Soo-Hoo
Defendant(s):
Issa M Musharbash Pro Se
Amal Musharbash Pro Se
Joint Debtor(s):
Amal Issa Musharbash Represented By Brian J Soo-Hoo
Plaintiff(s):
Phillip Musharbash Pro Se
Violette Musharbash Pro Se
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
Also #24 EH
Docket 54
This hearing on the Plaintiff’s Motion for Summary Judgment was continued from July 25, 2018. At the prior hearing, the Court continued the hearing for the Plaintiff and Defendant to have an opportunity to address the issue of willfulness under § 523(a)(6) in accordance with the Ninth Circuit BAP’s decision in In re Arden, 2015 WL 4068962, at *9 (9th Cir. BAP 2015)(citing Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871–72 (1989)).
PERSONAL SERVICE
The Defendant/Debtor again argues that under California law, issue preclusion is not available unless the defendant "has been personally served with summons or has actual knowledge of the existence of the litigation." (Docket 176 at 6). In support, the Debtor cites to In re Williams' Estate (Williams), 36 Cal. 2d 289, 297, 223 P.2d 248, 254 (1950), which was in turn cited with approval by In re Harmon, 250 F.3d 1240, 1246 (9th Cir. 2001). These cases, however, underscore that in order to limit the principle of collateral estoppel, there must be a "complete lack of knowledge on the part of a defendant of the action". Id. (emphasis added). In its prior tentative ruling, the Court noted that the failure of the Debtor’s declaration to address when or whether
2:00 PM
he had knowledge of the litigation that resulted in the default judgment was fatal. Now, having had the opportunity to file a new declaration, the Debtor still fails to address this issue instead reiterating that he was out of the country when the Plaintiff tried to effectuate service on him. The Plaintiff had previously indicated that due to the failure to locate the Debtor, that the Debtor was served via publication in the prior action and in response, the Debtor asserted that the failure of the Plaintiff to provide evidence of an order permitting service by publication should be determinative.
However, in reply, the Plaintiff has now provided a copy of the State Court’s Order for Publication. (Docket 177, at Ex. 1). Based on the foregoing evidence that Debtor was properly served by publication and, in particular due to Defendant/Debtor’s failure to address the issue of whether he had "complete lack of knowledge" of the State Court litigation, the Court finds that the Plaintiff’s objection that collateral estoppel should not apply to the instant case is overruled. Finally, the Debtor’s related arguments that the State Court Default Judgment is void as a matter of law for denying the Debtor due process are found to be unpersuasive.
WILLFULLNESS
"A ‘willful’ injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Barboza, 545 F.3d at 706, quoting Kawaauhau
v. Geiger, 523 U .S. 57, 61 (1998). To satisfy the willfulness requirement, it must be shown that the debtor either had "a subjective intent to harm or a subjective belief that harm is substantially certain." Su, 290 F.3d at 1144. When determining the debtor's intent under § 523(a)(6), there is a presumption that the debtor knows the natural consequences of his actions. Ormsby, 591 F.3d at 1206.
As a threshold matter, the Court overrules the Debtor’s objections to the declaration of the Deborah Slaieh.
As to the issue of "willfulness", the Court finds the Plaintiff’s Supplemental Brief persuasive. (Docket No. 175). In particular, the Supplemental Brief points to the specific allegations that the Debtor intended to injure the Plaintiff by filing litigation against him. The State Court Complaint contained numerous allegations that Debtor’s actions were "carried out in a deliberate, callous, malicious, despicable and intentional manner in order to injure and damage him." Additionally, the record before the trial
2:00 PM
court contained declaration from both the Plaintiff and Debtor’s ex-wife which supported a finding that the primary purpose behind the filing of the litigation was to injure the Plaintiff. Here, the Court finds that the State Court necessarily awarded punitive damages based on the Debtor’s intent to injure the Plaintiff and infers such intent to injure from a finding that the actor committed malice in fact based on the facts in the record detailed above, in addition to the facts set forth in the Plaintiff’s filings in support of the Motion for Summary Judgment. Based on the foregoing, the Court finds that the Plaintiff has met the requirements to satisfy California’s requirements for application of collateral estoppel on the issue of "intent to injure", and on that basis, the Court finds that the Default Judgment against the Debtor is determinative on the issue of willfulness under § 523(a)(6).
TENTATIVE RULING
Based on the Court’s prior tentative ruling, in addition to the instant tentative ruling, and having considered the arguments and filings of the parties, the Court finds that the Plaintiff has established that there is no genuine dispute as to any material fact and that the Plaintiff is entitled to judgment as a matter of law. The Court is inclined to GRANT the Motion in its entirety.
On December 18, 2013, Nabeel Slaieh ("Debtor") filed his petition for chapter 7 relief. On March 24, 2014, W E Jon Albrecht ("Plaintiff") filed the instant complaint to determine dischargeability of debt pursuant to § 523(a)(6). On June 13, 2018, the Plaintiff filed his Motion for Summary Judgment ("Motion"). On July 3, 2018, the Debtor filed his opposition to the Motion ("Opposition"). On the same date, the Debtor filed a substitution of attorney by which the Debtor indicated his intent to represent himself in propria persona going forward.
2:00 PM
As a threshold matter, the Court must address the manner in which the
Opposition was filed. Prior to the filing of the Substitution of Attorney Form, the Debtor was represented by George Saba ("Saba"). However, per the State Bar of California website, Mr. Saba has not been eligible to practice law in California since December 2017. Pursuant to the Court’s manual, Section 3.1(c) and Section 3.2(b), attorneys admitted to practice in the Central District of California, currently in good standing, are eligible to register as CM/ECF users with the rights to log in and file documents. Here, the Debtor, acting in pro per, is not eligible to file documents using CM/ECF and it was improper for Mr. Saba to use the CM/ECF system to improperly file a document for a party who he is no longer representing and who he is no longer able to represent given his ineligibility to practice law. Further, Section 3.2(d)(1) prohibits a registered user from knowingly permitting or causing to permit his or her login and password to be utilized by anyone. Here, Mr. Saba has violated the Court’s rules regarding CM/ECF filing. Based on the improper filing of the Opposition, the Court is inclined to issue an OSC why Mr. Saba’s CM/ECF rights should not be suspended or cancelled pursuant to Section 3.2(d)(3) of the Court Manual.
Based on the foregoing, the Court strikes the Opposition as improperly filed. A reply to the Opposition was filed on July 11, 2018 ("Reply"), as well as separately filed objections to the Declaration of Defendant in support of the Opposition (Docket No. 172).
A court may grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRBP 7056 (incorporating FRCP 56). In determining whether to grant a motion for summary judgment, courts must view the record and all inferences drawn from it in the light most favorable to the nonmoving party. Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th Cir.2011).
2:00 PM
In support of the Motion, Plaintiff requests that this Court take judicial notice of (1) The Certified Copy of Complaint for Malicious Prosecution, RJN, Ex. 1, (2) the Certified Copy of Summons filed January 25, 2011, RJN, Ex. 2, (3) the Certified Copy of Proof of Service of Summons, RJN, Ex. 3, and (4) the Copy of Judgment, RJN, Ex. 4. The Court takes judicial notice of these filings.
Nondischargeability under § 523(a)(6)
Section 523(a)(6) excepts from discharge debts arising from a debtor's willful and malicious injury to another person. Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 706 (9th Cir.2008). The willful and malice requirements must be analyzed separately, Carillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (2002), and the court must determine that both have been met, Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th Cir. 2010).
"A ‘willful’ injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Barboza, 545 F.3d at 706, quoting Kawaauhau
v. Geiger, 523 U .S. 57, 61 (1998). To satisfy the willfulness requirement, it must be shown that the debtor either had "a subjective intent to harm or a subjective belief that harm is substantially certain." Su, 290 F.3d at 1144. When determining the debtor's intent under § 523(a)(6), there is a presumption that the debtor knows the natural consequences of his actions. Ormsby, 591 F.3d at 1206.
"A malicious injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ " Su, 290 F.3d at 1146–47, quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001). "Within the plain meaning of this definition, it is the wrongful act that must be committed intentionally rather than the injury itself." Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005), citing Murray v. Bammer (In re Bammer), 131 F.3d 788, 791 (9th Cir.1997)("This four-part definition does not require a showing of biblical malice, i.e., personal hatred, spite, or ill will. Nor does it require a showing of an intent to injure, but rather it requires only an intentional act which causes injury."). "Malice may be inferred based on the nature of the wrongful act."
2:00 PM
Ormsby, 591 F.3d at 1206, citing Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 554 (9th Cir.1991)(determining that, in the case of conversion, malice may be inferred).
In the instant action, the Plaintiff obtained a judgment ("Judgment) in State Court as against the Defendant based on a complaint for malicious prosecution (the "State Action"). The Plaintiff now moves under a theory of collateral estoppel for summary judgment finding that the Judgment is nondischargeable under § 523(a)(6).
Collateral Estoppel
A bankruptcy court may grant summary judgment based on the issue preclusive effect of an existing state court judgment. See Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). In doing so, it must apply the forum state's issue preclusion law. Id. See also 28 U.S.C. § 1738. Here, California preclusion law applies.
In California, issue preclusion bars relitigation of an issue when: 1) the issue sought to be precluded is identical to that decided in a prior proceeding; 2) the issue was actually litigated in the prior proceeding; 3) the issue was necessarily decided in the prior proceeding; and 4) the decision in the prior proceeding is final and on the merits. Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990). Additionally, in California, issue preclusion may only be applied if it furthers underlying public policies. See id. at 343.
The party asserting issue preclusion bears the burden of establishing these requirements. Id. at 341. To do so, "[the] party must produce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Any reasonable doubt as to what was decided by a prior judgment should be resolved against allowing [issue preclusive] effect." Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th Cir.BAP1995), aff'd, 100 F.3d 110 (9th Cir.1996).
Here, the Plaintiff obtained a Judgment on a malicious prosecution action under California law. The Court now turns to whether ‘malicious prosecution’ satisfies the requirements for collateral estoppel under California law.
2:00 PM
Application of law to cause of action for malicious prosecution
In California, the common law tort of malicious prosecution provides a remedy for individuals subjected to maliciously instituted criminal and civil proceedings. In re Arden, 2015 WL 4068962, at *9 (9th Cir. BAP 2015)(citing Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871–72 (1989)). To establish a cause of action for malicious prosecution of a civil proceeding, the plaintiff must show "that the prior action (1) was commenced [or continued] by or at the direction of the defendant and was pursued to a legal termination in his [or her], plaintiff's, favor;
was brought without probable cause; and (3) was initiated [or continued] with malice." Id., quoting Bertero v. Nat'l Gen. Corp., 13 Cal.3d 43, 50 (1974)(internal quotation marks omitted).
In Arden, the BAP specifically considered whether the tort of malicious prosecution satisfies both the willful and malicious prongs of § 523(a)(6):
"The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action." Estate of C. Delores Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir.2008) ("Tucker"), quoting Sheldon Appel Co., 47 Cal.3d at 874 (internal quotation marks omitted). However, the malice required in malicious prosecution "is not limited to actual hostility or ill will toward [the] plaintiff but exists when the proceedings are instituted primarily for an improper purpose." Albertson v. Raboff, 46 Cal.2d 375, 383 (Cal.1956). See also Tucker, 515 F.3d at 1030, quoting Sierra Club Found. v. Graham, 72 Cal.App. 4th 1135, 1147 (1999)("Sierra Club ").
The California Supreme Court has explained:
[T]he principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person instituting them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for
2:00 PM
the purpose of depriving the person against whom they are instituted of a beneficial use of his property; [or] (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.
Albertson, 46 Cal.2d at 383, quoting Rest., Torts § 676. Accordingly, in a malicious prosecution action, the proof may or may not establish a willful intent to injure on the part of the defendant.
Arden at *9-10.
As underscored in Arden, willfulness is not a separate and distinct element of the tort of malicious prosecution, though willfulness may be inferred from the debtor's intent in commencing or continuing litigation. Moreover, " ‘[m]erely because a tort is classified as intentional does not mean that any injury caused by the tortfeasor is willful.’ " Ditto v. McCurdy, 510 F.3d 1070, 1078 (9th Cir.2007), quoting Miller v.
J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 604 (5th Cir.1998). Here, the Judgment obtained against Defendant/Debtor was a default judgment and although the BAP found that ‘malicious prosecution’ likely satisfies the malice requirement under § 523(a)(6), it also specifically found that the ‘willfulness’ element was not necessarily decided by the state court because ‘willfullness’ is not required to enter judgment on a malicious prosecution cause of action. In Arden, the jury instructions indicated that the specific question of intent to injure was not posed to the jury. As such, the willfulness requirement was not necessarily decided or actually litigated by the state court. Similarly, the Judgment obtained by Plaintiff Albrecht did not require the State Court to consider, let alone determine whether Defendant Slaieh intended injury to Plaintiff. The Plaintiff’s Motion assumes the issue of intent was decided by the State Court. However, absent authority to distinguish the Arden case, whose reasoning this Court adopts as its own, the Motion does not satisfy the requirements for collateral estoppel because the Judgment is insufficient to establish the elements required under
§ 523(a)(6). It is possible that the issue of willfulness is subsumed by the state court’s determination that punitive damages were appropriate. However, such a theory must be addressed with reference to the Ninth Circuit BAP’s decision in In re Plyam that a California state court punitive damage award, standing alone, does not preclude relitigation of § 523(a)(6)'s "willful" intent requirement. In re Sangha, 678 F. App'x
2:00 PM
561, 562 (9th Cir. 2017); Plyam v. Precision Development, LLC (In re Plyam), 530
B.R. 456, 463–65 (9th Cir. BAP 2015) (holding that "under California law, the general definition of malice in fact encompasses less reprehensible states of mind" than § 523(a)(6)'s "willful" intent requirement).
Finally, although the Court has stricken the Opposition as improperly filed, the Court shall also address the one cognizable legal issue raised in the Opposition – namely, that the State Action Complaint was not personally served on him. As to this issue, the Court agrees with the Plaintiff that the Defendant’s declaration fails to address whether and when he learned of the State Action. The declaration of Defendant is conspicuously silent on these facts and as such determined to be not credible on the issue of lack of service.
Based on the foregoing, the Court is inclined to CONTINUE the Motion for additional briefing regarding the issue of "willfulness".
APPEARANCES REQUIRED.
Debtor(s):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Movant(s):
Nabeel Slaieh Represented By Stephen B Mashney
2:00 PM
Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
2:00 PM
Adv#: 6:14-01081 Albrecht v. Slaieh
W.E. Jon Albrecht against Nabeel Slaieh. willful and malicious injury))
HOLDING DATE
From: 10/19/16, 12/14/16, 2/15/17, 3/29/17, 6/7/17, 10/25/17, 4/25/18, 7/25/18, 10/10/18
Also #23 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Defendant(s):
Nabeel Slaieh Represented By Stephen B Mashney Bruce A Boice
Plaintiff(s):
W E Jon Albrecht Represented By William L Miltner Robert C Harvey
Trustee(s):
Larry D Simons (TR) Represented By
2:00 PM
D Edward Hays David Wood Matthew Grimshaw
3:00 PM
From: 10/5/18, 10/15/18, 10/16/18 Also #26
EH
Docket 3
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
3:00 PM
(2) Approving the Assumption and Assignment of Executory Contracts; and (3)
Granting Related Relief
(FINAL HEARING)
From: 10/15/18, 10/16/18 Also #25
EH
Docket 8
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
11:00 AM
From: 9/27/18 EH
Docket 45
- NONE LISTED -
Joint Debtor(s):
Elsy G. Mejia Represented By
James Geoffrey Beirne
Movant(s):
Elsy G. Mejia Represented By
James Geoffrey Beirne James Geoffrey Beirne James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 59
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/13/18, 9/27/18 Also #2
EH
Docket 57
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Movant(s):
John D Castro Jr Represented By Chris A Mullen
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 3/13/17
From: 11/30/17, 1/25/18, 4/12/18, 6/14/18, 8/23/18
EH
Docket 30
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
11:00 AM
On October 20, 2017, the Court granted the Motion for OSC and ordered Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
11:00 AM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Movant(s):
Jude Okwor Represented By
Javier H Castillo Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MILESTONE FINANCIAL LLC
From: 9/25/18 EH
Docket 49
Service is Proper Opposition: Yes
As a preliminary note, the Court notes that Local Rule 4001-(1)(c)(4) states that: "[a] motion for relief from the automatic stay must be filed separately from, and not combined in the same document with, any other request for relief, unless otherwise ordered by the court." Therefore, the default position is that the alternative requests made by Movant, for dismissal of the case or modification of the plan, are inappropriately brought in conjunction with a motion for relief from stay. Here, the Court is inclined to not deviate from the default position, because such requests are more appropriately heard on a Chapter 13 calendar when the Chapter 13 Trustee is present. Therefore, the Court is inclined to DENY the alternative requests for dismissal of the case or modification of the plan without prejudice.
Regarding the request for relief from the automatic stay, the Court notes that Debtor is correct in asserting that the Chapter 13 plan is a conduit plan, with payments to be made to Del Toro Loan Servicing, Movant’s servicer, through the plan. While the Court notes that the docket does not reflect that a motion to dismiss for delinquency has been filed in this case, Debtor has not provided any supporting documentation
11:00 AM
indicating that the Chapter 13 plan payments are current.
Parties to discuss status of Chapter 13 plan payments and whether funds have been received by Movant and/or its loan servicer, Del Toro Loan Servicing.
APPEARANCES REQUIRED.
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 49
On March 29, 2018, Jaelyn Young ("Debtor") filed a Chapter 13 voluntary petition. Subsequently, on June 25, 2018, Debtor received in a discharge in a simultaneously pending Chapter 7 case. On June 28, 2018, Debtor’s Chapter 13 plan was confirmed.
On September 4, 2018, Debtor filed seven claim objections, objecting to claims 1, 2, 3, 6, 7, 8, and 10. Debtor contends that all seven of these claims were filed in violation of the discharge injunction. On September 17, 2018, Midland Credit Management, Inc. withdrew claim 6.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy
11:00 AM
Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b) states the following:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall
11:00 AM
determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount
(emphasis added). Here, because Debtor obtained a Chapter 7 discharge after the filing of the instant case, Debtor’s argument is not a valid basis for a claim objection.
The fact that Debtor filed the instant case prior to obtaining a Chapter 7 discharge presents another significant issue – the very validity of the instant filing itself. Courts have generally split into two groups on the issue of the propriety of having simultaneous bankruptcies. Some courts, such as the Seventh Circuit, consider the maintenance of simultaneous bankruptcies to be impermissible per se. See, e.g., In re Sidebottom, 430 F.3d 893 (7th Cir. 2005). Other courts, including the Ninth Circuit, allow the maintenance of simultaneous bankruptcy proceedings on a good faith showing. See In re Blendheim, 803 F.3d 477, 500 (9th Cir. 2015).
Even Blendheim, however, restricted its conclusion to situations where a debtor had obtained a discharge in the earlier filed case:
We agree with the Eleventh Circuit’s reasoning and reject a per se rule prohibiting a debtor from filing for Chapter 13 reorganization during the post- discharge period when the Chapter 7 case remains open and pending. Because nothing in the Bankruptcy Code prohibits debtors from seeking the benefits of Chapter 13 reorganization in the wake of a Chapter 7 discharge, we see no reason to force debtors to wait until the Chapter 7 case has administratively closed before filing for relief under Chapter 13.
11:00 AM
Id. at 500.
Implicit in the Blendheim excerpt above is that a discharge in the first case is a prerequisite for the simultaneous maintenance of two bankruptcy proceedings. One court, in summarizing the case law on the issue, recently stated that: "Despite the lack of statutory or rule guidance, there is little dispute in the case law that a debtor may not file a second bankruptcy case before entry of the discharge order in the first case." In re Montes, 14-13043 (Bankr. D.N.M. Feb. 25, 2015) (collecting cases). And, last fall, another bankruptcy court stated:
even in those jurisdictions that reject a per se bar to the simultaneous chapter 20 case, most courts will not permit a debtor to have simultaneous cases when the chapter 13 case is file before the debtor has received his chapter 7 discharge. These courts view the second filing as a "nullity."
In re Sorenson, 17-11823 (Bankr. D. Colo. Sept. 29, 2017) (collecting cases); see also In re Turner, 207 B.R. 373, 378 (B.A.P. 2nd Cir. 1997) ("Despite these courts’ differences as to the propriety of simultaneous filings, there is universal agreement among them that where a debtor files for chapter 7 relief and then files for protection under chapter 13 before receiving a discharge in the originally chapter 7 case, that the chapter 13 case is a nullity because the filing of simultaneous petitions is contrary to the obvious contemplated function of the Bankruptcy Code to resolve a debtor’s financial affairs by administration of a debtor’s property as a single estate under a single chapter within the code.") (quotation omitted).
11:00 AM
In accordance with the above, the Court is inclined to OVERRULE all seven claim objections and issue an OSC why this case should not be dismissed.
APPEARANCES REQUIRED.
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 50
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 51
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 52
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 - #13 EH
Docket 53
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 - #13 EH
Docket 54
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 55
See #7
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Movant(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Ann Cook Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Adam Casey Addison Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Percylyn Agustin Basa Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
John David Kraus Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Willie Mills Sanders Jr. Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/30/18 Also #22
EH
Docket 14
- NONE LISTED -
Debtor(s):
Miguel Santa Maria Represented By Todd L Turoci
Joint Debtor(s):
Lilia Maldonado Represented By Todd L Turoci
Movant(s):
Miguel Santa Maria Represented By Todd L Turoci
Lilia Maldonado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #21 EH
Docket 0
- NONE LISTED -
Debtor(s):
Miguel Santa Maria Represented By Todd L Turoci
Joint Debtor(s):
Lilia Maldonado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lisa Conway Represented By
Douglas E Klein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Tafoya Represented By Clay E Presley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Toni Elizabeth Prima - Zuvich Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Daniel Gutierrez Represented By Heather J Canning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Leonard Walter Frost Jr. Represented By Kristin R Lamar
Joint Debtor(s):
Joan Cheng Frost Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah A Bowie Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shelly Rose Lefebvre Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Craig Anton Vendeville Represented By Jenny L Doling
Joint Debtor(s):
Janelle Ronee Vendeville Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rebecca Moore Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Carlos Barron Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Irene Elizabeth Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Harold Edward Correa Represented By Matthew D. Resnik
Joint Debtor(s):
David Corey White Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard C. Baker Jr. Represented By Christopher J Langley
Joint Debtor(s):
Melissa J. Baker Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Lee Dismukes Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norma Hermosillo Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wade Fisher Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Raymond Reeley Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angela M. Sandoval Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Norma Angelica Garcia Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Candelario P Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marcell Antoine Ball Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jesus N Aguilera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mark H Chappell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Melissa Cheryl Ron Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sherry Ann Beardsley Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steve Jaime Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cynthia M Gonzalez Represented By Paul Y Lee
Joint Debtor(s):
Guadalupe Siddiqui Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tyreese Nabors Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joseph L Acosta Represented By Patricia M Ashcraft
Joint Debtor(s):
Juliana Acosta Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James Corey Huey Represented By Suzette Douglas
Joint Debtor(s):
Jeannette Huey Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 93
- NONE LISTED -
Debtor(s):
Arturo Suarez Represented By Tamar Terzian
Joint Debtor(s):
Rosemary Suarez Represented By Tamar Terzian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 69
- NONE LISTED -
Debtor(s):
Carlos Vincent Valdez Represented By Gregory M Shanfeld
Joint Debtor(s):
Grace G. Valdez Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 52
- NONE LISTED -
Debtor(s):
Jose Luis Gutierrez Represented By Kelly Warren
Joint Debtor(s):
Patricia Gutierrez Represented By Kelly Warren
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 179
- NONE LISTED -
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- NONE LISTED -
Debtor(s):
Celia Baeza Represented By
Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 225
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 142
- NONE LISTED -
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Allen J Sheerin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
John Stephen Puddy Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Joe Martinez Jr. Represented By David Lozano
Joint Debtor(s):
Sandra Lynette Martinez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Andrea Millette Tucker Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 81
- NONE LISTED -
Debtor(s):
Guadalupe Virginia Vargas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Brenda Fleming Bell Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Roger C Jefferson Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 80
- NONE LISTED -
Debtor(s):
Gracey Hunter Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
- NONE LISTED -
Debtor(s):
John Wesley Wilson Jr. Represented By Julie J Villalobos
Joint Debtor(s):
Michelle Janet Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Sandra M. Hankins Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 56
- NONE LISTED -
Debtor(s):
Kisha Eugena Stegall-Hill Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Roberto Garcia Garcia Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Maria Martha Garcia Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Raymond Ballejos Represented By Natalie A Alvarado
Joint Debtor(s):
Veronica Ballejos Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
- NONE LISTED -
Debtor(s):
Oracio Rosales Hernandez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Dana Lashonn Hays Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 37
- NONE LISTED -
Debtor(s):
Anisha Christel Wilson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 9/25/18 EH
Docket 161
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) stay. GRANT waiver of Rule 4001(a)(3) stay.
GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Christopher John Helme Represented By Todd L Turoci
Movant(s):
US Bank National Association, as Represented By
Tyneia Merritt
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ARROWHEAD CREDIT UNION
EH
Docket 27
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief from § 1301(a) stay because it does not appear that the motion was served on any co-debtor as that term is used in the statute. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Alvin M. Ching Represented By Keith Q Nguyen
Joint Debtor(s):
Aphrodyte D. Ching Represented By Keith Q Nguyen
Movant(s):
Arrowhead Credit Union Represented By
10:00 AM
Trustee(s):
Karel G Rocha
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: PACIFIC UNION FINANCIAL LLC
From: 9/25/18 EH
Docket 49
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears.
APPEARANCES REQUIRED.
Debtor(s):
Leonel Villa Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Lucila Pineda Represented By Jaime A Cuevas Jr.
Movant(s):
Pacific Union Financial, LLC Represented By
10:00 AM
Trustee(s):
Nancy L Lee
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
From: 9/25/18 EH
Docket 43
Service is Proper Opposition: Yes
Parties to discuss status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Antoinette Marie Tutt Represented By Brian C Miles
Movant(s):
U.S. Bank Trust National Represented By Jamie D Hanawalt Gilbert R Yabes
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
362(c)(4)(A)(ii) 58 Whirlaway St MOVANT: WELLS FARGO BANK, N.A. CASE DISMISSED 10/22/18
EH
Docket 11
Service is Improper Opposition: None
It appears that the automatic stay terminated on September 9, 2018, due to the operation of 11 U.S.C. § 362(c)(3). Specifically, it appears that Debtor had a Chapter 7 case pending within the year prior to the petition date of the instant case, and that such earlier case was dismissed. Nevertheless, the Court notes that Movant did not indicate an opposition deadline in its moving papers.
APPEARANCES REQUIRED.
Debtor(s):
Socorro Patino Represented By David R Chase
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
10:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). DENY request for relief pursuant to § 362(d)(2) because the motion (pg. 4) does not provide any basis for the request. GRANT waiver of Rule 4001(a)(3) stay.
GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Erick Pinedo Represented By
Daniel King
Joint Debtor(s):
Bridgette Pinedo Represented By Daniel King
Movant(s):
Santander Consumer USA Inc. Represented By
10:00 AM
Trustee(s):
Sheryl K Ith
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: MILESTONE FINANCIAL, LLC
EH
Docket 19
- NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NA AS TRUSTEE
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jesus Suarez Pro Se
Movant(s):
U.S. Bank N.A., as trustee, on behalf Represented By
Nancy L Lee
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: JUAN A MARTINEZ
EH
Docket 10
Service: Improper Opposition: None
The Court notes that Debtor has failed to serve the secured creditor pursuant to FED. R. BANKR. P. Rule 7004, as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Movant(s):
Juan A Martinez Represented By Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 2/6/18, 2/13/18, 3/6/18, 3/20/18, 4/24/18, 6/26/18 Also #11
EH
Docket 102
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
EH
Docket 277
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
Requiring Status Report EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
Also #14 EH
Docket 78
PROCEDURAL BACKGROUND
On January 26, 2018, Markus Boyd ("Debtor") filed a Chapter 11 voluntary petition. On February 13, 2018, the Court entered an interim order approving use of cash collateral. On March 6, 2018, the Court entered orders (1) authorizing Debtor to provide adequate assurance of payment to utility service providers and; (2) approving a budget. On March 26, 2018, the Court authorized the employment of Nicholas Gebelt as counsel for Debtor. On April 26, 2018, the Court disallowed four claims of American Express (claim numbers 2 and 4-6).
On June 22, 2018, Debtor filed its disclosure statement and Chapter 11 plan. On August 7, 2018, UST filed a limited objection to Debtor’s disclosure statement.
DISCLOSURE STATEMENT
2:00 PM
In addition to the disclosure statement, the following exhibits are included: (1) "Treatment of Claims/Interests" (Exhibit A); (2) "Executory Contracts & Unexpired Leases" (Exhibit B); (3) "Cash Flow Projections" (Exhibit C); (4) "Recent Financial History" (Exhibit D); (5) "Secured Claims" (Exhibit E); (6) "General Unsecured Claims, in Class 4A or 4B" (Exhibit F); "Liquidating Analysis" (Exhibit G); "Endnotes/Continuation Sheets" (which includes a supplement) (Exhibit H). Debtor has used the Court’s optional disclosure statement form and worksheets, and, therefore, the format of the disclosure statement is adequate.
The Chapter 11 Plan’s proposed effective date is October 21, 2018. There are four classes of claims and four listed categories of unclassified claims1:
Class 1: Arrears secured by real property -- $174,971.67 claim, Debtor proposes to pay over 60 months. Debtor’s Exhibit A contains a row for arrears on the second and third deeds of trust, but does not identify any amount owing.
Class 2: Additional claims secured by real property – Debtor lists three different claims within this class. Debtor proposes to continue paying his mortgage (identified as $772,733.45)2, over 230 months and at 2% interest. Debtor proposes to cure his delinquency on HOA dues over 60 months. Debtor has included a row for, presumably, future HOA dues but no amount is listed. Nor is it clear that this class is truly unimpaired.
Class 3: Priority claims: Debtor’s plan does not list any claims in class 3
Class 4: General Unsecured – $45,151.20, Debtor proposes to pay over 60 months.
Type 1: UST fees ($650) – paid in full on effective date
Type 2: Taxes (IRS) – approximately $80k, paid over 51 months
Type 3: Taxes (FTB) –$5,651.86, paid over 51 months
Type 4: Nicholas Gebelt’s fees ($30k)—paid in full on effective date
2:00 PM
Type 5: Accountant’s fees – none listed
LEGAL ANALYSIS
A. Adequate Information
A Chapter 11 disclosure statement is required to contain "adequate information" pursuant to 11 U.S.C. § 1125(b). Section 1125(f)(2) provides that: "the court may approve a disclosure statement submitted on standard forms approved by the court or adopted under section 2075 of title 28." The Central District of California has devised a disclosure statement template, Form 3017-1.CH11.DISCLSR.STMT, which Debtor generally adopted as to format.
As to the substance of a disclosure statement, 11 U.S.C. § 1125(a)(1) defines "adequate information" as:
information of a kind, and in sufficient detail as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records, including a discussion of the potential material Federal tax consequences of the plan to the debtor, any successor to the debtor, and a hypothetical investor typical of the holders of claims or interests in the case, that would enable such a hypothetical investor of the relevant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information
2:00 PM
The type of information required varies with the circumstances. See, e.g., In re Jeppson, 66 B.R. 269, 292 (Bankr. D. Utah 1986) (listing nineteen categories of information commonly required); see also In re Malek, 35 B.R. 443, 443-44 (Bankr.
E.D. Mich. 1983) (listing minimum requirements).
While Debtor has utilized Court approved forms and has clearly delineated the treatment of the varying claims, the disclosure statement simply lacks the information necessary to evaluate Debtor’s financial situation and determine the probability of the plan’s success. First of all, as noted by UST, Debtor’s practice appears to have been not to withhold taxes on earned income. Second of all, the limited financial information provided by Debtor indicates his income fluctuates drastically. The four months of "recent financial history" (Exhibit D) including in the disclosure statement note the following monthly receipts:
1) $4,559 (February) (the corresponding monthly operating report lists receipts of
$51.89)
2) $32,591 (March)
3) $15,541 (April)
4) $35,626 (May)
Additionally, a monthly operating report for June, filed after the disclosure statement, identifies receipts in the amount of $1,801.11. The limited financial history provided supports UST’s assertion that: "Debtor’s tax liabilities are a significant risk factor given that the monthly operating reports reflect that the Debtor averages between
$18-$19,000 in monthly net income – much less than the $30,000 reported in the Disclosure Statement’s cash flow projections." Indeed, using that $18-$19,000 figure, if one assumes that the receipts are before tax and that Debtor will ultimately be unsuccessful in the pending adversary proceeding, it would appear that the proposed plan may be infeasible. In any event, the financial information provided in the disclosure statement is grossly inadequate for an evaluation of the prospects of the proposed plan. The information simply does not allow for a reasonably accurate estimation of Debtor’s income and expenses moving forward.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18, 8/21/18 Also #13
EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 10/5/18, 10/15/18, 10/16/18, 10/17/18
Also #16 EH
Docket 3
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
(2) Approving the Assumption and Assignment of Executory Contracts; and (3)
Granting Related Relief
(FINAL HEARING)
From: 10/15/18, 10/16/18, 10/17/18
Also #15 EH
Docket 8
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
11:00 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
Also #1 EH
Docket 46
- NONE LISTED -
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
From: 8/22/18, 9/26/18 Also #4 & #5
EH
Docket 104
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 8 ("Claim") of Sake Consulting Engineers, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, an entity that is not the Debtor and therefore not entitled to allowance as a claim.
On August 6, 2018, the Claimant filed its response to the Objection ("Response"). On September 19, 2018, the Trustee filed his reply ("Reply")
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, Trustee has pointed to the fact that the evidence attached to the Claim are addressed to Paul Minnick as a representative of MCG Development. In response, Claimant has provided the same documents referenced by the Trustee and has failed to provide any admissible evidence indicating that liability on the contract can be collected against the Debtor’s estate.
11:00 AM
Based on the foregoing, the Court is inclined to SUSTAIN the Objection disallowing Claim No. 8 of the Claimant.
APPEARANCES REQUIRED.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18, 9/26/18 Also #3 & #5
EH
Docket 108
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 10 ("Claim") of Gouvis Engineering Consulting Group, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, which is an entity that is not the Debtor and therefore is not entitled to allowance as a claim. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
11:00 AM
evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee has pointed to facts tending to defeat the claim by virtue of the fact that Claimant’s own supporting documentation evinces a contractual relationship with Paul Minnick as representative of MCG Development Company, Inc., not on behalf of the Debtor. Absent evidence of a relationship between the Debtor and Claimant, the Claimant has failed to establish the existence of a claim against the Debtor’s estate.
11:00 AM
The Court is inclined to SUSTAIN the Objection and DISALLOW Claim No. 10 in its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18, 9/26/18 Also #3 & #4
EH
Docket 102
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 7 ("Claim") of Norman Musselman (the "Claimant"). The Trustee’s Objection asserts that the Claim is fully secured and not entitled to a dividend from the Estate.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that
11:00 AM
filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Claim indicates that it is secured by a Recorded Deed of Trust and Note and that the fair market value of the Property at issue exceeds the amount of the Claim such that it is fully secured. The Trustee requests that the Claim be allowed as fully secured but not entitled to a dividend from the estate. Based on the lack of prejudice to the Claimant and the Claimant’s failure to file response or opposition which this Court deems as consent pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the objection and ALLOW the Claim as a fully secured claim not entitled to a dividend.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
EH
Docket 82
On November 30, 2015, Janice Cox ("Debtor") filed a Chapter 7 voluntary petition. On March 21, 2016, Debtor received a Chapter 7 discharge. On May 23, 2016, the County of San Bernardino ("Creditor") filed a claim in the amount of $33,640.95 ("Claim 5"), secured by certain real property located in Big Bear City, CA (the "Property").
On February 21, 2018, Trustee obtained an order directing Debtor to turnover the Property (the "Property"). On May 10, 2018, the Court entered an order authorizing Trustee to sell the Property. The sale order authorized Trustee to make certain distributions, including making payment on delinquent property taxes. On September 18, 2018, Trustee filed an objection to Claim 5. The Court notes that Trustee did not use the mandatory claim objection form. The basis of Trustee’s claim objection is that Claim 5 was paid off with proceeds of the sale of the Property.
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11:00 AM
11 U.S.C. § 502(b) states the following:
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount.
(emphasis added). The plain language of the above statute is that the amount of a claim shall be determined as of the petition date. Because Trustee’s objection fails to raise any reason why Claim 5 does not accurately represent Creditor’s claim as of the petition date, the objection fails to raise a legally cognizable grounds for disallowing the claim. Further, Claim 5 is fully secured, and presumably Trustee would not be making a distribution on it.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Janice Elaine Cox Represented By Rajiv Jain
11:00 AM
Movant(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
Trustee(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
11:00 AM
EH
Docket 95
On January 11, 2016, Ferdinand Castillo ("Debtor") filed a Chapter 7 voluntary petition. On April 25, 2016, Debtor received a Chapter 7 discharge. On September 20, 2016, the San Bernardino County Tax Collector ("Creditor") filed a claim in the amount of $13,829.935 ("Claim 4"), secured by certain real property located in Chino Hills, CA (the "Property").
On December 15, 2016, Wells Fargo Bank, the holder of the first deed of trust on the Property, obtained relief from stay. On September 18, 2018, Trustee filed an objection to Claim 4. Trustee says the Property was foreclosed upon on July 31, 2017.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in
11:00 AM
interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(b) states the following:
11:00 AM
Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount.
(emphasis added). The plain language of the above statute is that the amount of a claim shall be determined as of the petition date. Because Trustee’s objection fails to raise any reason why Claim 4 does not accurately represent Creditor’s claim as of the petition date, the objection fails to raise a legally cognizable grounds for disallowing the claim.
Additionally, even if Trustee’s objection raised a legally cognizable argument, the objection does not contain any evidence establishing that Creditor was paid. Further, Claim 4 is fully secured, and presumably Trustee would not be making a distribution on it.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Ferdinand D Castillo Represented By Walter Scott
11:00 AM
Movant(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
Trustee(s):
Arturo Cisneros (TR) Represented By William Malcolm Christina J O
11:00 AM
Docket 64
- NONE LISTED -
Debtor(s):
Mee Soon Kim Represented By Minh Duy Nguyen
Trustee(s):
Larry D Simons (TR) Represented By David Seror Michael W Davis
Jessica L Bagdanov
11:00 AM
Docket 56
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee’s Fees: $ 4,950.00 Trustee’s Expenses: $ 0
Attorney Fees: $ 20,482.50
Attorney Costs: $ 677.91
The Court is inclined to disallow all requested expenses of Trustee because the Trustee has not provided an itemized expense list or otherwise addressed the requested expenses in any manner.
APPEARANCES REQUIRED.
Debtor(s):
David Leroy Norwood Represented By Jenny L Doling
Joint Debtor(s):
Carol Ann Norwood Represented By
11:00 AM
Trustee(s):
Jenny L Doling
Karl T Anderson (TR) Represented By Brandon J Iskander Leonard M Shulman Lynda T Bui
11:00 AM
Docket 42
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee’s Fees: $ 2,000.00 Trustee’s Expenses: $ 0
The Court is inclined to disapprove all requested expenses because Trustee has not included an itemized expense list or otherwise addresses the requested expenses in any manner.
APPEARANCES REQUIRED.
Debtor(s):
Anthony Joseph George Represented By Joel M Feinstein
Joint Debtor(s):
Susie Annette George Represented By Joel M Feinstein
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 22
On May 22, 2018, Charles & Gracie Hurd (collectively, "Debtors"; individually, "Charles" and "Gracie") filed a Chapter 7 voluntary petition. On July 2, 2018, Debtors filed a change of address, indicating that they had moved to Ohio.
On September 13, 2018, Debtors filed a motion to appoint Charles as the next friend of Gracie. Charles’s declaration states that Gracie "currently suffers from major back problems as a result of a fall two years ago. As a result of this issue she is unable to move and is incoherent most of the time due to the medications." Debtor has provided a doctor’s note, dated July 30, 2018, which states "patient is disabled and unable to travel until estimated twelve months."
FED. R. BANKR. P. Rule 1004.1 allows "a representative, including a general guardian, committee, conservator, or similar fiduciary," to file a voluntary petition on behalf of an incompetent person.
11:00 AM
The rule further provides that:
[a]n infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.
Rule 1004.1 is patterned after FED.R.CIV.P. Rule 17(c), which applies to adversary proceedings pursuant to FED. R. BANKR. P. Rule 7017. That rule provides that an incompetent person may sue "by a next friend or by a guardian ad litem" if the incompetent person does not have a duly appointed representative, and provides that "[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action."
Cases interpreting Rule 17(c) look to the law of the state in which the subject is domiciled and follow the state's incompetency laws." In re Burchell, 2014 WL 1304635, at *1 (Bankr. N.D. Ohio 2014)(internal citations omitted). This court shall thus look to the California Probate Code’s § 811 which outlines the possible bases for a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, including for example, incapacity to contract or to execute wills or trusts.
In support of the Motion, the Debtors have attached the Declaration of Charles in which he asserts that Gracie "currently suffers from major back problems as a result of a fall two years ago. As a result of this issue she is unable to move and is incoherent most of the time due to the medications." Notwithstanding this assertion, § 811(d) provides that "the mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." Instead, California law requires evidence of specific deficits and a link between the identified deficits and the acts that the allegedly incompetent person would otherwise have capacity to perform. The types of deficiencies are outlined in § 811 as follows:
Alertness and attention, including, but not limited to, the following:
Level of arousal or consciousness.
Orientation to time, place, person, and situation.
Ability to attend and concentrate.
Information processing, including, but not limited to, the following:
Short- and long-term memory, including immediate recall.
Ability to understand or communicate with others, either verbally or otherwise.
11:00 AM
Recognition of familiar objects and familiar persons.
Ability to understand and appreciate quantities.
Ability to reason using abstract concepts.
Ability to plan, organize, and carry out actions in one's own rational self-interest.
Ability to reason logically.
Thought processes. Deficits in these functions may be demonstrated by the presence of the following:
Severely disorganized thinking.
Hallucinations.
Delusions.
Uncontrollable, repetitive, or intrusive thoughts.
Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
Charles’s declaration does not contain the requisite detail necessary to satisfy the standard for appointment of a next friend.
Additionally, there are a variety of questions raised by the motion and evidence presented.
First, it would appear that any mental debilitation is a side effect of pain medication. Nevertheless, there is no evidence regarding how often Gracie is intended to take medication, or what exactly "incoherent most of time" means. If the situation is such that Gracie has been incoherent the entire two years since the fall occurred, then further detail should be submitted to the Court.
Second, the doctor’s note provided does not address any mental deficiencies whatsoever. In addition, it is not clear whether the doctor’s restriction on "travel" is strict enough to prevent attendance at a meeting of creditors. Finally, the change of address filed by Debtors indicates that Debtors moved from California to Ohio in July
11:00 AM
2018, the same month the doctor wrote that Gracie should not travel for approximately one year.
Third, the Court notes that Debtors have not complied with the Court’s instructions regarding this hearing. Specifically, the Court notes that its instructions stated: "[t]he Court will require a declaration from the Doctor laying a foundation for his diagnosis." Such a declaration was not filed, and the supplement which was filed, two days before the hearing, was neither authenticated nor instructive. Additionally, the Court notes that while its instructions provided for a hearing date of October 24, 2018, Debtors waited ten days to set the matter for hearing, providing relatively short notice of this hearing.
The Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Charles E. Hurd Represented By Sundee M Teeple Craig K Streed
Joint Debtor(s):
Gracie Hurd Represented By
Sundee M Teeple Craig K Streed
Movant(s):
Charles E. Hurd Represented By
11:00 AM
Sundee M Teeple Sundee M Teeple Craig K Streed Craig K Streed
Gracie Hurd Represented By
Sundee M Teeple Craig K Streed
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Also #13 EH
Docket 47
10/17/2018
On April 13, 2018, Desert Ice Castle, LLC ("Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Managing Member and alleged sole owner is Anthony Liu ("Liu"). The petition indicated that the Debtor owned assets totaling $1,864.61 and had liabilities totaling $860,500. The Debtor listed two claimants in Schedule F, one claim of Andrzej Luczynski ("Luczynski") in the amount of $800,000 (as disputed) and a claim of Lui Bin in the amount of $60,500. On September 12, 2018, Luczynski filed Claim No 1-1 in the amount of $3,200,000 based on a State Court Action for "unlawful termination [of] joint venture; conversion; unlawful eviction". Luczynski has further indicated that a trial date for the State Court Action is set for November 2, 2018. The Docket reflects that a Motion to Disallow Claim No. 1 has been set for hearing on October 24, 2018.
On September 10, 2018, the Debtor filed a motion to dismiss the bankruptcy ("Motion"). A notice of Non-opposition was filed by Lui Bin on the same date.
Opposition to the Motion was filed by Luczynski and the Trustee on October 3, 2018 (the "Oppositions"). The Debtor filed an Omnibus Reply to the Oppositions on October 10, 2018 ("Reply").
11:00 AM
The Debtor seeks dismissal pursuant to § 305(a)(1). Section 305(a)(1)
provides as follows:
The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if—
(1) the interests of creditors and the debtor would be better served by such dismissal or suspension;
11 U.S.C. § 305(a)(1); In re Eastman, 188 B.R. 621, 625 (9th Cir. BAP 1995). The
courts that have construed § 305(a)(1) are in general agreement that abstention in a properly filed bankruptcy case is an extraordinary remedy, and that dismissal is appropriate under § 305(a)(1) only in the situation where the court finds that both "creditors and the debtor" would be "better served" by a dismissal. Id. (internal citations omitted). The legislative history uses the following example of such a situation:
an arrangement is being worked out by creditors and the debtor out of court, there is no prejudice to the rights of creditors in that arrangement, and an involuntary case has been commenced by a few recalcitrant creditors to provide a basis for future threats to extract full payment.
H.R.Rep. No. 95–595, 95th Cong., 1st Sess. 325 (1977); 1978 U.S.C.C.A.N. 5963,
6281.
As the statutory language and legislative history demonstrate, the test under § 305(a) is not whether dismissal would give rise to a substantial prejudice to the debtor. Nor is the test whether a balancing process favors dismissal. Rather, the test is whether both the debtor and the creditors would be "better served" by a dismissal.
In support of the Motion, the Debtor argues that (1) Luczynski will suffer no prejudice from dismissal of the case because the amended complaint filed in the State Action dismissed the Debtor from the complaint; (2) Creditor Lui Bin will be paid in full; (3) the only parties benefitting from continuation of the case are the Trustee and his professionals. Although the Debtor has seemingly been dismissed from the underlying State Court litigation, the State Action retains allegations that the Debtor is an alter ego of the named defendant, Liu. (Roman Decl. ¶ 2).
The Oppositions essentially assert that (1) Luczynski has filed a proof of claim
11:00 AM
that constitutes prima facie evidence of a claim; and (2) avoidable insider payments have been discovered that will benefit the Debtor’s creditors.
On the current record, the Court is inclined to DENY the Motion. Here, assuming (as the Court must at this juncture) that Luczynski may have an enforceable claim against the Debtor’s estate, dismissal is likely to result in plain legal prejudice to Luczynski because the Debtor and its principal/sole shareholder seek to payoff the only other unsecured creditor in full in order to force a dismissal. The Debtor’s strategy is a transparent violation of the bankruptcy code’s command that similarly situated creditors must be treated similarly. Additionally, the Court is unconvinced that the dismissal of the Debtor from the underlying State Court Action is a sufficient basis to find that the Debtor has no remaining liability to Luczynski. In fact, the Debtor’s evidence confirms that Luczynski’s complaint continues to argue that the Debtor and Liu are alter egos. For now, the Court agrees with the Trustee and Luczynski that dismissal would be premature at this point.
Based on the foregoing, the Court finds that Debtor has not met its burden of demonstrating that both the Debtor and creditors will be "better served" by dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Thomas J Eastmond
11:00 AM
Also #12 EH
Docket 55
- NONE LISTED -
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
From: 9/26/18 EH
Docket 121
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Movant(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:09-01235 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
David Loughnot
2:00 PM
Jonathan A Loeb Jeffrey Rosenfeld
DOES 1 through 100, inclusive Pro Se
Plaintiff(s):
RICHARD K. DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
01/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb
2:00 PM
Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Peter M Bransten
Michael I Gottfried Aleksandra Zimonjic Monica Rieder Cynthia M Cohen
2:00 PM
Trustee(s):
Roye Zur
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01329 DIAMOND v. Empire Partners, Inc., a California Corporation et
(Defendant - Empire Partners, Inc) HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb
2:00 PM
Jeffrey Rosenfeld
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld
Previti Realty Fund, L.P. Represented By Jonathan A Loeb Jeffrey Rosenfeld
The James Previti Family Trust Represented By Jonathan A Loeb Jeffrey Rosenfeld
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur
2:00 PM
Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:16-01211 Olivares v. Dason et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
2:00 PM
2:00 PM
Adv#: 6:16-01219 Candee et al v. Ayoub et al
From: 11/1/16, 6/7/17, 1/24/18, 1/31/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Tarek El Sayed Ayoub Represented By Sherif Fathy
Defendant(s):
Tarek El Sayed Ayoub Represented By Todd L Turoci
Gabriela VIlleda Ayoub Represented By Todd L Turoci
Joint Debtor(s):
Gabriela Villeda Ayoub Represented By Sherif Fathy
Plaintiff(s):
Keith H Candee Represented By Jon H Lieberg
Original Thurber Ranch LLC Represented By Jon H Lieberg
2:00 PM
Trustee(s):
Wesley H Avery (TR) Represented By Larry D Simons
2:00 PM
HOLDING DATE
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18, 7/11/18
EH
Docket 44
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
Also #22 & #23 EH
Docket 97
08/02/2018
BACKGROUND
On September 12, 2016, Douglas and Anne Goodman (collectively, "Debtors" or "Defendants") filed their petition for chapter 13 relief.
On November 11, 2016, Mark and Natasha Reynoso (collectively, "Plaintiffs") filed a complaint seeking determination of the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) (the "Complaint"). Specifically, Plaintiffs allege that in 2015, they purchased real property located at 1656 West Lisbon Street in Upland, CA (the "Property") from the Debtors, and that a sale was consummated on the misrepresentations of the Debtors’ agent, Theresa Mann, that the Property was 3,231 square feet while Plaintiffs assert that the Property is actually 2,713 square feet (or a difference of 518 square feet). Plaintiffs also assert that they were led to believe that a water leak in the upstairs bathroom had been repaired. Plaintiffs allege that the Debtors knew or should have known that their agent was making false and misleading representations to Plaintiffs.
On February 3, 2017, the Court entered an order granting Defendants first motion to dismiss the Complaint, with leave to amend. A First Amended Complaint (the "FAC") was filed on February 28, 2017. On April 19, 2017, the Plaintiffs filed a First Amended Complaint captioned "Corrected" which indicated it had been corrected for typographical errors. (the "Corrected Complaint"). The Court denied
2:00 PM
Defendants’ second motion to dismiss at a hearing on May 4, 2017. On June 5, 2017, the Defendants filed their Answer to the FAC ("Answer").
On March 9, 2018, the Defendants moved to dismiss the April 19, 2018, complaint. The Court granted the motion to dismiss the April 19, 2018, complaint with leave to amend. A second amended complaint was then filed on May 23, 2018 (the "SAC"). [Note: there is a dispute regarding whether the operative complaint is a second or third amended complaint due to the filing of the "corrected complaint" indicated above. For purposes of this hearing, the operative complaint is Docket No. 93]. Defendants now move to dismiss the SAC. No opposition has been filed by the Plaintiffs.
DISCUSSION
As a threshold matter, the Motion seeks relief pursuant to Rule 12(b)(6).
However, given that the Defendants have filed an Answer to the FAC, the Court shall construe the Motion as a motion under Rule 12(c), a motion for judgment on the pleadings.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Knappenberger v. City of Phx., 566 F.3d 936, 939 (9th Cir.2009) (quoting Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995)).
On a Rule 12(c) motion, the court must accept as true all the material facts alleged in the complaint and must draw all reasonable inferences in favor of the non- moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). In ruling on a Rule 12(c) motion, the court may not consider extrinsic evidence unless the motion is converted into a Rule 56 summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989) (citing Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982)). However, a court may consider facts that are contained in materials of which the court may take judicial notice when considering a motion for judgment on the pleadings. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir.1999) (quoting Barron
2:00 PM
v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994)).
The crux of Defendants’ argument for dismissal of the FAC is that Plaintiffs have not set forth the basis for a money judgment under state law. In the Court’s tentative ruling on the motion to dismiss the FAC, the Court stated the following:
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469 B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014). Here, although the Complaint is not explicit regarding the state law causes of action at issue, it appears implicit in the allegations that the Plaintiffs seek a monetary judgment as to a fraud or misrepresentation claim.
Nonetheless, Plaintiffs should not have to guess at the state law basis of the debt for a money judgment.
Here, the SAC has added bases for calculation of damages under state law but has still not set forth the state law basis for the monetary judgment.
Thus, the Plaintiffs have still not addressed the concerns raised by the Court and Defendants that they do not have sufficient notice of the basis for a monetary judgment such that the Defendants can adequately defend themselves in the action.
TENTATIVE RULING
Based on the foregoing, including the Plaintiffs failure to file opposition to the Motion to Dismiss which can be deemed as consent to the granting of the Motion pursuant to LBR 9013-1(h), the Court is inclined to GRANT the Motion dismissing the SAC with leave to amend, in order to provide the Plaintiffs with an opportunity to set forth the specific bases for monetary damages under state law such that the litigation can proceed.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Pro Se
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Douglas Edward Goodman Represented By Edward T Weber
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
2:00 PM
Anne Louise Goodman Represented By Edward T Weber
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
(Holding Date)
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18, 7/11/18
Also #21 & #23 EH
Docket 13
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
2:00 PM
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
From: 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18, 7/11/18
Also #21 & #22 EH
Docket 26
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Samer A Nahas Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By
2:00 PM
Samer A Nahas Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
From: 3/28/18, 6/13/18, 7/25/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
EH
Docket 26
On October 30, 2017, Sara Durham ("Debtor") filed a Chapter 7 voluntary petition. On January 8, 2018, SCE Federal Credit Union ("Plaintiff") filed a non- dischargeability complaint against Debtor. On February 8, 2018, Debtor filed her answer to the complaint.
On May 2, 2018, Plaintiff filed a motion to compel Debtor to respond to discovery. The Court granted the motion pursuant to an order entered June 6, 2018.
On September 26, 2018, Plaintiff filed a motion to strike the answer of Debtor and for entry of default. The basis for Plaintiff’s motion is (1) Debtor’s failure to appear at either status conference in this case; (2) Debtor’s failure to participate in the drafting of a status report for either status conference; (3) Debtor’s failure to respond in any way to the discovery requests originally propounded on February 27, 2018; (4) Debtor’s continued failure to respond to discovery after the Court entered an order compelling her response; and (5) Debtor’s failure to pay $1,013.50 in sanctions that
2:00 PM
were ordered against her to reimburse Plaintiff for bringing a motion to compel.
FED. R. CIV. P. Rule 37(b)(2)(A), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7037, states:
If a party or a party’s officer, director, or managing agent – or a witness designated under Rule 30(b)(6) or 31(a)(4) – fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
directing that the matter embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
striking pleadings in whole or in part;
staying further proceedings until the order is obeyed;
dismissing the action or proceeding in whole or in part;
rendering a default judgment against the disobedient party;
treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Furthermore, FED. R. CIV. P. Rule 37(d)(3) permits the Court to order the above listed
2:00 PM
sanctions in response to a party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection.
Here, Plaintiffs have adequately established that Debtor has failed to participate in this case in any meaningful way. Based on Debtor’s continued failure to cooperate in discovery or the preparation of status reports, and Debtor’s failure to attend any hearing in this, and noting the lack of opposition to the instant motion, the Court is inclined to strike Debtor’s answer. Regarding Plaintiffs’ request that the Court enter default against Debtor, once Debtor’s answer is stricken, the Plaintiff may follow the normal procedures for seeking entry of default and a default judgment.
The Court is inclined to GRANT the motion to the extent of STRIKING Debtor’s Answer.
APPEARANCES REQUIRED.
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Movant(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
2:00 PM
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01020 SCE Federal Credit Union v. Durham
From: 3/21/18, 6/27/18, 8/22/18 Also #25
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sara Durham Represented By
Edgar P Lombera
Defendant(s):
Sara Durham Pro Se
Plaintiff(s):
SCE Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:18-01123 First Home Bank v. Karadas
From: 7/25/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01117 Pringle v. Reyes
From: 7/25/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Rolando Carlos Reyes Represented By Walter Scott
Defendant(s):
Reginald Reyes Represented By Walter Scott
Joint Debtor(s):
Florencia Aquino Reyes Represented By Walter Scott
Plaintiff(s):
John P. Pringle Represented By Brandon J Iskander
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By Lynda T Bui Brandon J Iskander
Shulman Hodges & Bastian LLP
11:00 AM
EH
Docket 127
- NONE LISTED -
Debtor(s):
Martin Caballero Represented By Luis G Torres
Joint Debtor(s):
Clementina Caballero Represented By Luis G Torres
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 15
The Court having reviewed the motion, and noting the lack of opposition, is inclined to GRANT the motion, avoiding the junior lien of U.S. Bank Trust, N.A. as trustee upon completion of the Chapter 13 plan.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Joseph N Duguay II Represented By Andy C Warshaw
Movant(s):
Joseph N Duguay II Represented By Andy C Warshaw Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 11
On August 20, 2018, Michael Fink ("Debtor") filed a skeletal Chapter 13 voluntary petition. Debtor had previously filed bankruptcies in November 1998, November 2011, January 2012, May 2016, and September 2017, all of which were dismissed for failure to file information or failure to appear at the meeting of creditors. On September 12, 2018, UST filed a motion to dismiss case, requesting a one-year re- filing bar.
Dismissal
11 U.S.C. § 707(b)(1) permits the Court to dismiss a Chapter 7 case for abuse. 11 U.S.C.
§ 707(b)(3)(A) states:
11:00 AM
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in paragraph (2)(A)(i) does not arise or is rebutted, the court shall consider –
whether the debtor filed the petition in bad faith
In determining whether a case should be dismissed under § 707(b)(3)(A), the Court considers the totality of the circumstances, but is ultimately instructed to consider whether "the debtor’s intention in filing a bankruptcy petition is inconsistent with the Chapter 7 goals of providing a ‘fresh start’ to debtors and maximizing the return to creditors." In re Mitchell, 357 B.R. 142, 154-55 (Bankr. C.D. Cal. 2006) (listing factors to be considered in making that determination).
The majority of the Mitchell factors are inapplicable when, as here, a debtor files a skeletal petition that does not provide the Court with sufficient information to apply the Mitchell test. Only factor seven (history of bankruptcy filings) and, possibly, factor nine (egregious behavior) can be assessed when a debtor files a skeletal petition. Both those factors weigh in favor of dismissal when, as here, a debtor repeatedly files skeletal petitions during a short period of time, and does not disclose previous filings.1 While § 707(a)(1) and (3) provide for dismissal when a debtor fails to fulfill his duties under the Bankruptcy Code, when a debtor repeatedly files bankruptcy and fails to evince any attempt to comply with the filing requirements, it can be inferred, absent any indication to the contrary, that the debtor’s purpose in filing bankruptcy is not to take advantage of the fresh start. See, e.g., In re Craighead, 377 B.R. 648, 655 (Bankr.
N.D. Cal. 2007) ("Courts generally hold that when a debtor repeatedly files bankruptcy petitions and then repeatedly fails to file schedules or to comply with other requirements, this pattern of behavior is evidence of bad faith and an attempt to abuse the system."). Dismissal under § 707(b)(3) is appropriate in those circumstances.
11:00 AM
Re-Filing Bar
The court is empowered to impose a refiling bar under 11 U.S.C. § 349(a). As COLLIER notes, courts’ analysis of this section is somewhat confused due to confounding "dismissal with prejudice" with "dismissal with injunction against future filings." COLLIER ON BANKRUPTCY ¶ 349.02[3]; compare In re Garcia, 479 B.R. 488 (Bankr. N.D. Ind. 2012) (denying motion for dismissal with prejudice, but imposing three-year refiling bar) with In re Craighead, 377 B.R. 648 (Bankr. N.D. Cal. 2007) (appearing to equate dismissal with prejudice with an injunction against refiling).
There is also a circuit split concerning whether an injunction on refiling for more than 180 days is allowed under the Bankruptcy Code. Compare In re Frieouf, 938 F.2d 1099 (10th Cir. 1991) (180 days is maximum allowed length of refiling injunction) with Casse v. Key Bank Nat. Ass’n, 198 F.3d 327 (2nd Cir. 1999) (injunction against filing for more than 180 days permissible). 11 U.S.C. § 349(a) reads:
Unless, the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
The disagreement revolves around whether the qualifier "Unless, the court, for cause, orders otherwise" modifies the content after the semi-colon. In re Leavitt noted this disagreement, but since the court was dealing with a dismissal with prejudice, rather than an injunction against refiling, it did not resolve the issue. 209 B.R. 935, 942 (9th Cir. B.A.P. 1997). Within the Ninth Circuit, it appears the trend is to adopt the reasoning of the Second Circuit and allow injunctions for more than 180 days. See e.g. In re Velasques, 2012 WL 8255582 at *3 (Bankr. E.D. Cal. 2012).
Here, Debtor has filed five previous bankruptcies which were all summarily dismissed, and, in the instant case, failed to file the balance of the schedules. As noted above, the Court has determined that Debtor’s behavior is sufficient to warrant dismissal for bad faith and the Court finds the requested one-year refiling bar to be appropriate.
11:00 AM
Moreover, Debtor’s failure to oppose is deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion, dismissing the case and imposing a re- filing bar of one year.
APPEARANCES REQUIRED.
Debtor(s):
Michael R Fink Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 0
- NONE LISTED -
Debtor(s):
Michael R Fink Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 59
- NONE LISTED -
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MILESTONE FINANCIAL LLC
From: 9/25/18, 10/18/18 Also #5
EH
Docket 49
Service is Proper Opposition: Yes
As a preliminary note, the Court notes that Local Rule 4001-(1)(c)(4) states that: "[a] motion for relief from the automatic stay must be filed separately from, and not combined in the same document with, any other request for relief, unless otherwise ordered by the court." Therefore, the default position is that the alternative requests made by Movant, for dismissal of the case or modification of the plan, are inappropriately brought in conjunction with a motion for relief from stay. Here, the Court is inclined to not deviate from the default position, because such requests are more appropriately heard on a Chapter 13 calendar when the Chapter 13 Trustee is present. Therefore, the Court is inclined to DENY the alternative requests for dismissal of the case or modification of the plan without prejudice.
Regarding the request for relief from the automatic stay, the Court notes that Debtor is correct in asserting that the Chapter 13 plan is a conduit plan, with payments to be made to Del Toro Loan Servicing, Movant’s servicer, through the plan. While the
11:00 AM
Court notes that the docket does not reflect that a motion to dismiss for delinquency has been filed in this case, Debtor has not provided any supporting documentation indicating that the Chapter 13 plan payments are current.
Parties to discuss status of Chapter 13 plan payments and whether funds have been received by Movant and/or its loan servicer, Del Toro Loan Servicing.
APPEARANCES REQUIRED.
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Melissa Cheryl Ron Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Richard Steward Represented By Jamil L White
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Scott Kosner
Joint Debtor(s):
Kenya Lashawn Britt Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Javier Ortega Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anna Marie Montgomery Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rosalva Perez Camacho Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Manuel Barragan Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Yazmeen Nicole Barragan Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jason Wade Trust Represented By Benjamin R Heston
Joint Debtor(s):
Shontay Leanne Trust Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Scott R Moore Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Joint Debtor(s):
Christine Achieng Matoka Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Morris Represented By
Julie J Villalobos
Joint Debtor(s):
Cassandra Morris Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shelley Elizabeth Gastelo Represented By Marcella Lucente
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Humberto Camacho Jr Represented By Christian N. Cooper
Joint Debtor(s):
Sarah Camacho Represented By Christian N. Cooper
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Olivia Lopez Represented By
William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Carlos Bonilla Echeverria Represented By Dana Travis
Joint Debtor(s):
Samantha Patricia Estupinan Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert J Martin Represented By Paul Y Lee
Joint Debtor(s):
Amanda J Martin Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jaime Rodriguez Represented By Robert W Ripley
Joint Debtor(s):
Amy Lynn Rodriguez Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Leanne Diaz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lakendra Johnson Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James K. Bingham Represented By Patricia M Ashcraft
Joint Debtor(s):
Lisa D. Bingham Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Gacho Ruidera Jr. Represented By Dana Travis
Joint Debtor(s):
Maria Genalyn Raneses Ruidera Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Samy M. Girgis Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Linda Irene Christ Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Todd Kenneth Brothers Represented By Jenny L Doling
Joint Debtor(s):
Rubi Zelena Brothers Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ronald A Carter Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bryant Douglas Nevitt Represented By Marc A Duxbury
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brandon Scott Jones Represented By Todd L Turoci
Joint Debtor(s):
Lizette Rosita Jones Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rena Renee Payne Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marcia Yasko Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Shanks Represented By David L Nelson
Joint Debtor(s):
Kimberly J Shanks Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
EH
Docket 110
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Movant(s):
Luevina Henry Pro Se
11:00 AM
Plaintiff(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #42 EH
Docket 187
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #41 EH
Docket 191
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 179
- NONE LISTED -
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 218
- NONE LISTED -
Debtor(s):
Vivian Munson Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 94
- NONE LISTED -
Debtor(s):
Martin D Woods Represented By
M Wayne Tucker
Joint Debtor(s):
Shante L Woods Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Julio Cesar Cacho Represented By
M Wayne Tucker
Joint Debtor(s):
Rosalie Ann Cacho Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Veronica A Mendoza Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Candice Maria Borrego Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Yvonne Irene Rodriguez Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Pamela Ann Harris Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
EH
Docket 88
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
1:00 PM
From: 9/26/18, 10/24/18 EH
Docket 121
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Movant(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
10:00 AM
MOVANT: JPMORGAN CHASE BANK N.A.
EH
Docket 81
10/30/2018
Service is proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jimmy Radu Vianu Represented By Andrew Nguyen
Joint Debtor(s):
Milagros Vianu Represented By Andrew Nguyen
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph M Pleasant
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA N.A.
From: 10/16/18 EH
Docket 180
Service is Proper Opposition: Yes
Parties to apprise Court of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Movant(s):
HSBC BANK USA Represented By Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
From: 4/24/18, 5/29/18, 7/31/18 EH
Docket 55
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
10:00 AM
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 64
10/30/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request to lift § 1301 co-debtor stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rama Cokrohadian Suhari Represented By
M Wayne Tucker
Movant(s):
Wells Fargo Bank, N.A. d/b/a Wells Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
Docket 39
10/30/2018
Service: Proper Opposition: Yes
Parties to update the Court regarding the progress of APO discussions. APPEARANCES REQUIRED.
Debtor(s):
Malek Boshra Abdelmalek Represented By Carey C Pickford
Movant(s):
Lakeview Loan Servicing, LLC Represented By Brett P Ryan Jason C Kolbe Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 7/31/18 EH
Docket 75
- NONE LISTED -
Debtor(s):
Fernando Fabrigas Sr. Represented By
R Creig Greaves Kevin Tang
Joint Debtor(s):
Estela F. Fabrigas Represented By
R Creig Greaves Kevin Tang
Movant(s):
FREEDOM MORTGAGE Represented By Jason C Kolbe Nancy L Lee
Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander
10:00 AM
Rika Kido
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 9/11/18 EH
Docket 35
10/30/2018
The Movant submitted evidence that the Debtor is delinquent in the amount of
$30,303.59, having missed 10 postconfirmation payments. The parties stipulated toa continuance of the hearing from September 11, 2018 to this date. The primary basis of opposition appears to be regarding the status of a loan modification application.
Parties to update the Court.
APPEARANCES REQUIRED.
Debtor(s):
Joan Eleanor Demiany Represented By Jenny L Doling
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 6/6/18, 9/11/18 EH
Docket 59
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request for relief from the co-debtor stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and GRANT order designating Debtor as "borrower" under Cal. Civil Code § 2920.5. DENY request pursuant to § 362(d)(2) for lack of cause shown and DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
From: 9/25/18, 10/16/18 EH
Docket 36
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Joseph Manuel Ruiz Represented By April E Roberts
Joint Debtor(s):
Shannon Elizabeth Ruiz Represented By
10:00 AM
Movant(s):
April E Roberts
Americredit Financial Services, Inc., Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION From: 6/13/18, 8/28/18, 9/11/18, 10/16/18
EH
Docket 10
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
Seterus, Inc. as the authorized Represented By Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: VEROS CREDIT LLC
EH
Docket 21
10/30/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Enoch Young Represented By Patricia M Ashcraft
Movant(s):
Veros Credit, LLC Represented By Robert M Tennant
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: POSITIVE INVESTMENT
EH
Docket 15
10/30/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. APPEARANCES REQUIRED.
Debtor(s):
Harold Lundy Pro Se
Joint Debtor(s):
Clare Ann Lundy Pro Se
Movant(s):
Positive Investment, Inc. Represented By Helen G Long
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 10
10/30/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY APO request as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Christopher Joseph Bluitt Represented By Michael E Clark
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: SUSAN VIOLET GUILLOT
EH
Docket 38
10/30/2018
The instant case was filed within one year of the dismissal of the Debtor’s prior case, Case No. 17-15347. Thus, the Debtor must seek to continue the stay pursuant to § 362(c)(3). The language of § 362(c)(3) plainly states that the Court cannot extend the stay until "after notice and hearing completed before the expiration of the 30-day period". Here, the 30-day period expired on October 14, 2018. The Court has no authority to extend the stay. The Motion must be DENIED.
APPEARANCES REQUIRED.
Debtor(s):
Susan Violet Guillot Represented By Gary S Saunders
Movant(s):
Susan Violet Guillot Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LOUISE LASTER
EH
Docket 14
10/30/2018
The Motion seeks to continue the stay as to all creditors, including Bayview, the servicer as to mortgage payments on the Debtor’s primary residence. First, the proof of service indicates that the Debtor failed to serve any creditors other than Bayview the Motion is denied as to any creditors other than Bayview. As to Bayview, the Debtor has provided sufficient evidence to overcome the presumption that the case was not filed in good faith.
The hearing was set on regular notice and no opposition has been filed. The Court is inclined to GRANT the Motion as to Bayview and DENY as to all other creditors.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Louise Laster Represented By
Neil R Hedtke
Movant(s):
Louise Laster Represented By
Neil R Hedtke
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ELMER TOMPKINS
EH
Docket 11
10/30/2018
The Debtor has provided sufficient evidence to overcome the presumption that the case was not filed in good faith. The Court is inclined to GRANT the Motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Elmer Arnold Tompkins Represented By Scott Kosner
Movant(s):
Elmer Arnold Tompkins Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
From: 7/10/18, 8/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01111 David M. Goodrich, Chapter 11 Trustee v. American Express Company, a
#19.00 CONT Status Conference RE: 3rd Party Complaint [4] Answer to Complaint and Affirmative Defenses to Plaintiff's Complaint, and Third-Party Claim Against John C. Larson, Third-Party Complaint by American Express Company, a New York Corporation dba American Express, American Express Travel Related Services, Inc., a New York corporation dba American Express against John C. Larson
From: 8/21/18 Also #20
EH
Docket 4
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
American Express Company, a New Pro Se American Express Travel Related Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth Mark S Horoupian
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01111 David M. Goodrich, Chapter 11 Trustee v. American Express Company, a
From: 7/10/18, 8/21/18 Also #19
EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
American Express Company, a New Pro Se American Express Travel Related Pro Se
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
2:00 PM
Trustee(s):
Mark S Horoupian
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01113 David M. Goodrich, Chapter 11 Trustee v. Netreva, Inc., a California
From: 7/10/18, 8/21/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Netreva, Inc., a California Represented By Lazaro E Fernandez
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Victor A Sahn Steven Werth
2:00 PM
$164280.00, Expenses: $7207.77. (Turoci, Todd) From: 10/16/18
Also #23 - #24
EH
Docket 414
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also #22 - #24
EH
Docket 421
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
CIT Group, Inc. Represented By
Brian C Vanderhoof
2:00 PM
Also #22 - #24
EH
Docket 416
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
From: 1/9/18, 4/10/18, 7/10/18, 7/24/18, 8/14/18 Also #22 - #23
EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
Also #26 EH
Docket 14
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Movant(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
2:00 PM
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
From: 7/10/18, 9/12/18 Also #25
EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Docket 80
- NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
Movant(s):
Rick's Patio Inc Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also #29 EH
Docket 45
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18 Also #28
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 10/2/18 EH
Docket 11
- NONE LISTED -
Debtor(s):
Antoine Hossein Babai Represented By Christopher Hewitt
2:00 PM
MOVANT: PACIFIC RIM DISTRIBUTION CENTER LLC
Also #32 EH
Docket 47
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Pacific Rim Distribution Center, Represented By
Kurt Rifbjerg
2:00 PM
From: 10/5/18 Also #31
EH
Docket 2
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
(FINAL HEARING)
From: 8/20/18, 9/25/18 Also #34 - #37
EH
Docket 9
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente
2:00 PM
From: 10/2/18 Also #33 - #37
EH
Docket 75
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
2:00 PM
Also #33 - #37
EH
Docket 97
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
2:00 PM
Also #33 - #37
EH
Docket 101
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
2:00 PM
From: 8/28/18, 9/25/18 Also #33 - #36
EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente
10:00 AM
From: 10/17/18 EH
Docket 10
- NONE LISTED -
Debtor(s):
Audrey Yasui-Iwata Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 37
10/31/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 185.50 Trustee Expenses: $ 19.96
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Cynthia Higl Represented By
Jonathan R Preston
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 141
10/31/2018
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the Application of the associated professional, the following administrative claims will be allowed:
Trustee Fees: | $ 10,500 |
Trustee Expenses: | $ 120.90 |
Attorney Fees: | $46,289.90 |
Attorney Costs: | $2,776.59 |
The applications for compensation are approved and the trustee and associated professionals may submit on the tentative. Additionally, pursuant to the Court’s Order Authorizing payment to the tax preparer, the Court approves the fee of $1,000 paid to Donald Fife as well as amounts previously authorized for GlassRatner and Jack Pope’s services in connection with the marketing and auction of property of the estate.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
William A. Mendez II Represented By
11:00 AM
Thomas J Polis
Joint Debtor(s):
Shawna D. Mendez Represented By Thomas J Polis
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy Lindsey L Smith Carmela Pagay
11:00 AM
MOVANT: JUAN A MARTINEZ
From: 10/23/18 EH
Docket 10
Service: Improper Opposition: None
The Court notes that Debtor has failed to serve the secured creditor pursuant to FED. R. BANKR. P. Rule 7004, as required by this Court’s procedures.
APPEARANCES REQUIRED.
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Movant(s):
Juan A Martinez Represented By Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18, 8/22/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01309 Cisneros v. DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN
A. Cisneros against DOUGLAS J. ROGER, M.D., INC. DEFINED BENEFIT PLAN. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential Transfer (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18, 8/22/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
DOUGLAS J. ROGER, M.D., INC. Represented By
Summer M Shaw
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 4/25/18, 6/13/18, 8/22/18 EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
A. Cisneros Represented By
2:00 PM
Trustee(s):
Chad V Haes
D Edward Hays
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:18-01150 Discover Bank v. Paradis
From: 9/5/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Jeffrey W Paradis Represented By Daniel King
Defendant(s):
Jeffrey W Paradis Represented By Daniel King
Plaintiff(s):
Discover Bank Represented By Holly J Nolan
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:17-01225 Liquid Capital Exchange, Inc. v. Mills, III
EH
Docket 1
- NONE LISTED -
Debtor(s):
Robert H Mills III Represented By
Catherine Christiansen
Defendant(s):
Robert H. Mills III Represented By Todd L Turoci
Plaintiff(s):
Liquid Capital Exchange, Inc. Represented By Christopher J Langley
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
(A) by Wayne W Suojanen on behalf of Mina Farah against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18, 8/22/18, 9/26/18 EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
(A) by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (Suojanen, Wayne)
From: 5/9/18, 7/11/18, 8/22/18, 9/26/18 EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18, 6/6/18, 8/22/18 EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
3 Columnar Ladera LLC Pro Se
Mike Bareh Represented By
Mirco J Haag Jason E Goldstein
MB Capital Group LLC Pro Se
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By
2:00 PM
Thomas F Nowland
Plaintiff(s):
Chienan Chen Represented By Douglas L Mahaffey
Chun-Wu Li Represented By
Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
From: 5/9/18, 5/16/18, 7/11/18, 8/22/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
2:00 PM
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01174 Pringle Ch 7 Trustee v. Shenouda et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Violete Shenouda Represented By John J Lewis
Anwar Wagdy Represented By John J Lewis
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
John P Pringle Ch 7 Trustee Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01057 Whitson et al v. Bastorous
CASE DISMISSED 5/21/18
From: 5/9/18, 8/22/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Blaine Whitson Represented By Benjamin Taylor
2:00 PM
Susan Whitson Represented By Benjamin Taylor
Union Home Loan Profit Sharing Represented By
Benjamin Taylor
Gurpaljit Deoll Represented By Benjamin Taylor
Benny Winefeld Represented By Benjamin Taylor
RM Holdings, LLC Represented By Benjamin Taylor
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
From: 11/16/17 EH
Docket 1
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Plaintiff(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 242
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Stephen Collias Represented By Cara J Hagan
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Mohammed Abdizadeh Pro Se
9:30 AM
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: SHERRI SHAFIZADEH
EH
Docket 8
- NONE LISTED -
Debtor(s):
Denise Valencia Pro Se
Movant(s):
Sherri S Shafizadeh Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JOSE GRANADOS AND NORMA GRANADOS-MAYCOTT
EH
Docket 10
Service: Proper Opposition: None
The Court notes that Debtors did not serve counsel for the secured creditor which obtained relief from stay in the prior case. Further, Debtors state that relief from stay was obtained as a result of a medical diagnosis in February 2018, but the relief from stay order was entered in October 2017. Thus, the evidence presented is not clear and convincing.
APPERANCES REQUIRED.
Debtor(s):
Jose Granados Represented By Todd L Turoci
Joint Debtor(s):
Norma Granados-Maycott Represented By Todd L Turoci
10:00 AM
Movant(s):
Jose Granados Represented By Todd L Turoci Todd L Turoci
Norma Granados-Maycott Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE GOLDEN 1 CREDIT UNION
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Adrien Liets Represented By
Melissa A Raskey
Joint Debtor(s):
Marine Lazaro Liets Represented By Melissa A Raskey
Movant(s):
The Golden 1 Credit Union Represented By Mirco J Haag
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK A CA BANKING CORPORATION
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jaime Harris St James Represented By Neil R Hedtke
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: HONDA LEAST TRUST
EH
Docket 11
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
William Piere Represented By Paul Y Lee
Joint Debtor(s):
Caitlyn Whalen Represented By Paul Y Lee
Movant(s):
HONDA LEASE TRUST Represented By
10:00 AM
Trustee(s):
Vincent V Frounjian
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC
EH
Docket 22
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Lakendra Johnson Represented By Neil R Hedtke
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WVMF FUNDING LLC
EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Movant(s):
WVMF Funding, LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 18
Service is Proper Opposition: None
As noted by Movant, pursuant to 11 U.S.C. § 362(c)(2)(C), the automatic stay terminated as to acts against Debtors when Debtors received their discharge on September 17, 2018. Pursuant to 11 U.S.C. §365(p)(1), the automatic stay in favor of the bankruptcy estate terminated as to this lease on August 1, 2018, the deadline for Trustee to assume or reject the unexpired lease. Therefore, the Court will GRANT the motion to the extent of confirming there is no stay in place.
APPEARANCES REQUIRED.
Debtor(s):
Gilbert L Belfatto Represented By Christopher Hewitt
Joint Debtor(s):
Carole L Morgan Represented By Christopher Hewitt
10:00 AM
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 10/2/18 EH
Docket 29
10/02/2018
Service is Proper Opposition: YES
Parties to indicate whether there has been progress on an agreement for an APO. APPEARANCES REQUIRED.
Debtor(s):
David Bruce Bremer Represented By Paul Y Lee
Joint Debtor(s):
Tina Marie Bremer Represented By Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
From: 9/4/18, 10/2/18 EH
Docket 27
- NONE LISTED -
Debtor(s):
Justa Nelida Guzman Represented By Lionel E Giron
Movant(s):
The Bank of New York Mellon, et al Represented By
S Renee Sawyer Blume
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 10/16/18 EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: VCFS AUTO LEASING CO
EH
Docket 45
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Shane Morgan Represented By Christopher Hewitt
Movant(s):
VCFS Auto Leasing Co. Represented By Scott S Weltman
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: OCWEN LOAN SERVICING LLC
EH
Docket 128
Service is Proper Opposition: Yes
Movant’s sole legal basis for its request for relief from the automatic stay is that Movant is not protected by an adequate equity cushion. As noted by Trustee in its opposition, however, the equity cushion in this case is above the range required by Mellor and related case law. Therefore, the Court is inclined to CONTINUE the hearing on the motion for Trustee to market and sell the property.
APPEARANCES REQUIRED.
Debtor(s):
Michelle Meredith Pro Se
Movant(s):
Ocwen Loan Servicing LLC Represented By Sean C Ferry
Trustee(s):
Howard B Grobstein (TR) Represented By
10:00 AM
Noreen A Madoyan
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 73
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Movant(s):
WELLS FARGO BANK, N.A., Represented By Shreena Augustin Seth Greenhill April Harriott Theron S Covey Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FEDERAL NATIONAL MORTGAGE ASSOCIATION
EH
Docket 77
NONE LISTED -
Debtor(s):
Xavier Roque Gutierrez Represented By Paul Y Lee
Joint Debtor(s):
Sara Nicole Moran-Gutierrez Represented By Paul Y Lee
Movant(s):
Federal National Mortgage Represented By Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 62
Service is Proper Opposition: None
Based on the fact that Debtor appears to have completed his Chapter 13 plan, and based on the evidence submitted by Movant which appears to indicate that Debtor has made the last eighteen monthly payments, the Court is inclined to GRANT the motion to the extent of lifting the automatic stay as it applies to the bankruptcy estate only.
GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Herbert Anderson Jr. Represented By Todd B Becker
Movant(s):
Nationstar Mortgage, LLC. Represented By Michael Daniels Darlene C Vigil
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Requiring Status Report EH
Docket 0
NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
Also #19 EH
Docket 45
NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18
Also #18 EH
Docket 18
NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
3:00 PM
EH
Docket 173
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. Two days later, Debtor filed notices of setting insider compensation (the "Notices") for Bruce Gordon ("Gordon") and Oscar Brambila ("Brambila"). On August 30, 2018, the H.N. and Frances C. Berger Foundation ("Berger Foundation") filed its opposition to the Notices. On September 20, 2018, Debtor filed amended notices of setting insider compensation (the "Amended Notices") for Gordon and Brambila. On September 27, 2018, the Berger Foundation filed its opposition to the Amended Notices. On October 22, 2018, Debtor set the Amended notices for hearing on November 13, 2018.
On October 26, 2018, Debtor filed a motion to deem Gordon and Brambila not insiders for purposes of compensation. Debtor also filed an application shortening time, and the Court set a hearing for November 6, 2018, at 3:00 p.m, with opposition due at the hearing. Debtor argues that Gordon and Brambila are officers "in title only" and do not have any "corporate-level control" over Debtor.
3:00 PM
11 U.S.C. § 101(31)(B) defines "insider," in the corporate context, as including the following:
director of the debtor;
officer of the debtor;
person in control of the debtor;
partnership in which the debtor is a general partner;
general partner of the debtor; or
relative of a general partner, director, officer, or person in control of the debtor;
Potentially at issue here are the first three subsections of the insider definition. At present, and given that only Debtor has filed a pleading with regard to this matter, the Court does not have any evidence before it which would suggest that Gordon and Brambila have sufficient control to be classified as either: (1) a statutory insider pursuant to § 101(31)(B)(iii); or (2) a non-statutory insider pursuant to case law. See, e.g., In re Beaver Valley Builder’s Supply, Inc., 177 B.R. 507 (Bankr. W.D. Pa. 1995) (Insider includes any person "who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny"). Therefore, the Court will limit its analysis to whether Gordon and Brambila are insiders pursuant to § 101(31)(B)(i)-(ii).
Debtors relies on the case of In re Foothills Texas, Inc., 408 B.R. 573 (Bankr. D. Del. 2009) in support of its contention that an individual’s job title is not dispositive in determine whether that individual is an insider. In re Foothills Texas stated the following:
3:00 PM
The "officers at issue in this case are vice presidents. A vice president is "a person representing or deputizing for a president; an official who ranks immediately below a president." An official is obviously an officer. Thus, under the plain meaning of the words, a vice president is presumptively an
officer, who, in turn, is an insider. Nonetheless, the mere title of a person does not end the inquiry.
Just as there may be non-statutory insiders that fall within the definition of an insider but are outside of the enumerated categories, there may be persons that fall within the enumerated categories but do not meet the definition of the category. Under the plain meaning of the words, the question is whether a person is taking part in the management of the debtor. In order to overcome the presumption that a person holding an officer’s title is not what he or she appears to be requires submission of evidence sufficient to establish that the officer is, in fact, not participating in the management of the debtor.
Id. at 579; see also In re NMI Sys., Inc., 179 B.R. 357, 369 (Bankr. D.D.C. 1995) (employing holistic approach to determine whether an individual was an officer).
Nevertheless, the reasoning of In re Foothills Texas is, to some extent, confusing. The statement that "there may be persons that fall within the enumerated categories but do not meet the definition of the category" appears paradoxical, for if an individual does not meet the definition of the category, then they would not fall within the enumerated categories. The Court is cognizant that there may be individuals whose job titled includes the term "officer" or "director" but who is not, under the relevant definition of the word, an "officer" or director." See, e.g., In re Kunz, 489 F.3d 1072 (10th Cir.
2007) (retired director emeritus not a director). Yet, subjecting all officers/directors to a control test would seem to render § 101(31)(B)(i)-(ii) superfluous, for the statue already contains a subsection classifying "person[s] in control" as insiders. See, e.g., In re Public Access Technology.Com, Inc., 307 B.R. 500, 505 (Bankr. E.D. Va. 2004) ("It is unnecessary for a court to determine whether an individual is both a director and a person in control, or both an officer and a person in control, as the statutory definition is clearly stated in the disjunctive."); see also In re Bonds Distrib. Co., Inc., 2000 WL 33673768 at *3 (Bankr. M.D.N.C. 2000) (declining to consider whether someone "acts" like a director").
3:00 PM
On the record before the Court, the Court disagrees with Debtor’s interpretation. First, the plain language of 11 U.S.C. § 101(31)(B) states that officers and directors are insiders, and Debtor has conceded that both Gordon and Barambila were told they were officers. Second, to read § 101(31)(B) as requiring, or permitting, this Court to consider whether an officer is "really" an officer, through the use of some sort of control, renders § 101(31)(B)(i)-(ii) superfluous. In re Foothills Texas appears to stand for the proposition that the list of insiders can be both expanded, or contracted, based on a holistic analysis. While § 101(31)(B) certainly can be expanded, because it contains a non-exhaustive list of examples, foundational principles of statutory interpretation preclude the list’s contraction. See, e.g., In re Ribcke, 64 B.R. 663 (Bankr. D. Md. 1986) ("The Marksons are subject to the label of insiders in this case by virtue of the statutory definition which may be expanded by a factual presentation but never contracted."). Finally, policy reasons weigh against the imposition of an additional requirement that an officer or director actually "act" like an officer or director, because the regulation of such individuals is designed to protect the creditors, who would not have the level of access necessary to mount a factual defense to an assertion that an individual was an officer in title only.
Separately, assuming, arguendo, that the Court found In re Foothills Texas to be persuasive, the evidence presented does not clearly establish that Gordon and Brambila do not take part in the management of Debtor. To the contrary, both appear to have day to day management authority.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
3:00 PM
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall
11:00 AM
Docket 31
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
No opposition has been filed.
Service was Proper.
The applications for compensation of the Trustee and Accountant for Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
11:00 AM
Trustee Fees: $ 7,949.75 Trustee Expenses: $ 38.70
Accountant Fees: $ 2,371.50 Accountant Costs: $ 26.55
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Steve Allen Alldis Represented By Hector C Perez
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 70
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
No opposition has been filed.
Service was Proper.
The applications for compensation of the Trustee, Counsel for Trustee, and Accountant for Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated
11:00 AM
professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 26,570.42 Trustee Expenses: $ 540.45
Attorney Fees: | $ 43,812 |
Attorney Costs: | $ 2,040.98 |
Accountant Fees: | $ 18,386.00 |
Accountant Costs: | $ 191.15 |
Court Costs: | $ 350.00 |
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Mee Soon Kim Represented By Minh Duy Nguyen
Trustee(s):
Larry D Simons (TR) Represented By David Seror Michael W Davis
Jessica L Bagdanov
11:00 AM
Also #2 EH
Docket 64
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Mee Soon Kim Represented By Minh Duy Nguyen
11:00 AM
Trustee(s):
Larry D Simons (TR) Represented By David Seror Michael W Davis
Jessica L Bagdanov
11:00 AM
EH
Docket 56
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
No opposition has been filed.
Service was Proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined
11:00 AM
to APPROVE the following administrative expenses:
Trustee’s Fees: $ 4,950.00 Trustee’s Expenses: $ 528.92
Attorney Fees: $ 20,482.50
Attorney Costs: $ 677.91
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
David Leroy Norwood Represented By Jenny L Doling
Joint Debtor(s):
Carol Ann Norwood Represented By Jenny L Doling
Trustee(s):
Karl T Anderson (TR) Represented By Brandon J Iskander Leonard M Shulman Lynda T Bui
11:00 AM
EH
Docket 19
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
11:00 AM
On August 7, 2018, a Chapter 7 voluntary petition was filed on behalf of Michael Artmore ("Debtor").
On October 4, 2018, Debtor filed a stipulation with UST requesting dismissal of the case and the return of certain bank funds to Debtor. The stipulation recites that Debtor did not file, or cause to be filed, the instant case. The stipulation states that the social security number used for this case only matches Debtor’s last four digits, and does not reflect his actual social security number. Finally, the stipulation states that Debtor was not aware of the instant filing until he was informed that the bank has frozen his bank account. On October 12, 2018, the instant case was dismissed.
On October 5, 2018, Debtor filed a motion for an order expunging this case, or, alternatively, redacting the filing from the public record and directing the credit reporting agencies to remove the filing.
Debtor has provided a case in support of the argument that a bankruptcy filing may be expunged if the filing was done with the knowledge of the debtor. See In re Duque, 2016 WL 4239608 at *1 (Bankr. M.D. Fla. 2016). Nevertheless, the availability of this remedy, and the analysis the Court is required to consider, is not clear. See Peter C. Alexander, Identity Theft and Bankruptcy Expungement, 77 AM. BANKR. L.J. 409,
412-13 (2003) ("The order for an expungement of a bankruptcy case filing does present significant analytical difficulties. Despite the rise in identity theft and consequent fraudulent bankruptcy petitions, there are no reported decisions wherein expungement has been ordered and thus there is little guidance on the subject.
Moreover, in the few cases that discuss expungement of a debtor’s records, there appears to be little agreement about the specific source of a bankruptcy court’s authority to expunge."); Maureen A. Tighe & Emily Rosenblum, "What Do You Mean, I Filed Bankruptcy?" - Or How the Law Allows a Perfect Stranger to Purchase an Automatic Stay in Your Name, 32 LOY. L.A. L. REV. 1009, 1024 (1999) ("A second
11:00 AM
problem not adequately addressed under the current Bankruptcy Code is that there is no clear provision allowing for expungement of a fraudulent filed bankruptcy. This leaves bankruptcy judges unsure of how they can or should handle these victims even where a victim has spent the time and expense to prove he or she was not the one who filed the bankruptcy.").
Since the publication of the two articles cited above, several courts have considered the issue whether expungement is an appropriate remedy when a bankruptcy is fraudulently filed unbeknownst to a debtor. Several of these cases, however, deal with a debtor who, to some extent, participated in the preparation of the filing, but had misgivings either afterwards or shortly before the filing. In a published decision in In re Storay, the bankruptcy court concluded that it had the authority to expunge an unauthorized bankruptcy filing pursuant to 11 U.S.C. § 105(a). 364 B.R. 194, 196 (Bankr. D.S.C. 2006) ("Based upon the weight of the evidence, the Court finds that cause exists to expunge this case pursuant to § 105.").
Not only is the availability of expungement in this situation unsettled, the adequacy of the remedy is unclear. One bankruptcy court noted the following:
Moreover, expunging the Case at this point may make it more difficult for the Purported Debtor to convince the credit reporting agencies and prospective creditors that the filing was unauthorized, as the Case would be akin to an apparition – a creditor or credit reporting agency may have a notation that it had been filed, but would not have any way to access a case number or perform an electronic search to locate an explanation for its filing or located an order declaring the filing to be unauthorized.
This anomaly can be prevented by fashioning alternative relief. Accordingly, the Court finds that the filing of the Case was unauthorized by Anita Elizabeth Dick and was filed fraudulently by Gary Oseroff. The Court directs the Clerk to create a "flag" which states "Unauthorized Bankruptcy Filing – Identity Theft Victim" and to associate that flag with the Case and make it publicly and prominently viewable whenever the Case Information is electronically accessed. The Court also directs that the Clerk make the following docket
11:00 AM
entry for this Memorandum Opinion and Order: "Memorandum Opinion and Order re-opening the Case, finding that Anita Elizabeth Dick is an identity theft victim and did not authorize the filing of the Case, and grating other relief." The Debtor is authorized to forward copies of this Memorandum Opinion and Order to whomever she sees fit.
In re Dick, 2006 WL 6544157 at *5 (Bankr. N.D. Tex. 2006) (footnote omitted).
While it appears that the majority opinion is that a bankruptcy case may be expunged pursuant to § 105(a), it is unclear whether that is the appropriate remedy in this case. Regarding Debtor’s request that the credit agencies be directed to alter Debtor’s credit reports to remove this filing, it does not appear that the Court has jurisdiction to order such a request, and, to the extent such jurisdiction does exist, the request would appear to require an adversary pursuant to FED. R. BANKR. P. Rule 7001(7).
APPEARANCES REQUIRED.
Debtor(s):
Michael W Artmore Represented By Summer M Shaw
Movant(s):
Michael W Artmore Represented By Summer M Shaw
Trustee(s):
Karl T Anderson (TR) Represented By
11:00 AM
Robert P Goe
2:00 PM
Adv#: 6:18-01102 PRINGLE v. Capital One Bank (USA), National Association
EH
Docket 23
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
2:00 PM
Defendant(s):
Capital One Bank (USA), National Represented By
Kevin M Eckhardt
Movant(s):
JOHN PRINGLE Represented By Robert P Goe
Plaintiff(s):
JOHN PRINGLE Represented By Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:18-01102 PRINGLE v. Capital One Bank (USA), National Association
Avoidance of Transfers Pursuant to 11 U.S.C. § 548(a)(1)(B); (3) Recovery of Avoided Transfers Pursuant to 11 U.S.C. § 550; and (4) Disallowance of Claims Pursuant to 11 U.S.C. § 502 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer))
From: 9/5/18 Also #6
EH
Docket 1
Appearances:
Order by Attorney Order by Chambers
Status Conference cont'd. to:
Pretrial Conf set for: Trial set for:
Joint Status Report due: Scheduling order due
Discovery cutoff:
2:00 PM
Last day to file pretrial motions and pretrial order:
Complete 1 day of mediation by: Order appointing Mediator
Evidentiary Hearing Set:
NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Capital One Bank (USA), National Represented By
Kevin M Eckhardt
Plaintiff(s):
JOHN PRINGLE Represented By Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 11/15/17, 12/6/17, 1/10/18, 6/6/18, 10/3/18
EH
Docket 1
Appearances:
Order by Attorney Order by Chambers
Status Conference cont'd. to:
Pretrial Conf set for: Trial set for:
Joint Status Report due: Scheduling order due
Discovery cutoff:
Last day to file pretrial motions and pretrial order:
Complete 1 day of mediation by: Order appointing Mediator
Evidentiary Hearing Set:
2:00 PM
NONE LISTED -
Debtor(s):
Malik Muhammad Asif Represented By Todd L Turoci
Defendant(s):
Malik Muhammad Asif Represented By David T Egli
Zobia Asif Represented By
David T Egli
Joint Debtor(s):
Zobia Asif Represented By
Todd L Turoci
Plaintiff(s):
Itria Ventures, LLC Represented By Michael F Chekian
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
2:00 PM
Adv#: 6:17-01186 Gordon v. Dresser
523(A)(2); Non Dischargeability of Debt under Fraud and Defalcation While Acting in a Fiduciary Capacity 11 U.S.C. Sec. 523(A)(4); Non Dischargeability of Debt for Wilfull and Malicious Injury 11 U.S.C. Sec. 523(A)(6)
From: 3/29/18 EH
Docket 1
Appearances:
Order by Attorney Order by Chambers
Status Conference cont'd. to:
Pretrial Conf set for: Trial set for:
Joint Status Report due: Scheduling order due
Discovery cutoff:
Last day to file pretrial motions and pretrial order:
Complete 1 day of mediation by: Order appointing Mediator
Evidentiary Hearing Set:
2:00 PM
NONE LISTED -
Debtor(s):
Ruth Herrera Dresser Represented By Christopher Hewitt
Defendant(s):
Ruth Dresser Represented By
Michael Jay Berger
Plaintiff(s):
Marshall Gordon Represented By Marvin H Weiss
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #11 EH
Docket 13
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
2:00 PM
Defendant(s):
Amy Williams Pro Se
Richard M Thomas Jr. Pro Se
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
Movant(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Trustee(s):
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
From: 9/26/18 Also #10
EH
Docket 1
Appearances:
Order by Attorney Order by Chambers
Status Conference cont'd. to:
Pretrial Conf set for: Trial set for:
Joint Status Report due: Scheduling order due
Discovery cutoff:
Last day to file pretrial motions and pretrial order:
2:00 PM
Complete 1 day of mediation by: Order appointing Mediator
Evidentiary Hearing Set:
NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
Defendant(s):
Amy Williams Pro Se
Richard M Thomas Jr. Pro Se
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Trustee(s):
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
11:00 AM
From: 6/28/18, 8/30/18 EH
Docket 113
NONE LISTED -
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/13/18 EH
Docket 124
The Court finds Debtors' request for authority to lodge an amended order appropriate under FRCP 60(a). Specifically, the Court is persuaded that the Court likely intended to approve the Motion and grant lien avoidance on completion of plan payments rather than on receipt of a discharge but due to clerical mistake by Debtor in the lodgment of the order, entered an order granting avoidance on discharge in a case where the Debtors were not eligible for discharge and where that ineligibility was apparent to all parties. For these reasons, and finding notice was proper under the circumstances, the Court is inclined to GRANT the Motion permitting the lodgment of an amended order.
APPEARANCES WAIVED. Movant may lodge an order within 7 days.
On November 21, 2013, Jose & Hiliana Castellanos ("Debtors") filed a Chapter 7 voluntary petition. Debtors previously received a discharge in a Chapter 7 proceeding on October 21, 2010. As such, Debtors were ineligible for a discharge in the instant
11:00 AM
case.
On December 17, 2013, Debtors converted their case to Chapter 13. On December 24, 2013, Debtors filed a motion to avoid liens pursuant to § 506(d). The motion requested that the second and third liens on Debtors’ principal residence, held by Bank of America and Excel National Bank, respectively be avoided conditioned upon "receipt of a chapter 13 discharge." On March 10, 2014, the Court granted the relief sought in the motion.
On June 6, 2018, the Chapter 13 trustee filed his final report. On July 3, 2018, Debtors filed a motion for leave to file new order on Debtors’ motion to avoid junior lien. On July 25, 2018, Debtors re-filed the motion, and the matter was set for hearing.
Debtors appear to argue that 11 U.S.C. § 105 provides the basis for the relief requested FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED.
R. BANKR. P. Rule 9024, however, provides the mechanism whereby a party can seek relief from a final order. Pursuant to FED. R. CIV. P. Rule 60(c)(1), however, Debtors are time-barred from bringing an argument under FED. R. CIV. P Rule 60(b)(1)-(3). Therefore, the only applicable bases for relief are FED. R. CIV. P. Rule 60(b)(4)-(6).
The motion filed by Debtors does not provide adequate information to allow the Court to apply the applicable legal framework, even if the Court were to construe the motion as requesting relief pursuant to an appropriate legal provision.
Furthermore, in light of this Court’s ruling in In re Washington, 587 B.R. 349 (Bankr.
C.D. Cal. 2018), permitting Debtors to amend their motion at the end of their case would be prejudicial to creditors and would open up a legal loophole. Pursuant to In re Washington, the Debtors may be required to pay the claims of the contingently
11:00 AM
avoided lienholders through the Chapter 13 plan pro rata with other unsecured creditors. Allowing Debtors to fix their own mistake, at the conclusion of the case, would allow Debtors to avoid the secured claims of the junior lienholders while avoiding paying those claims through the Chapter 13 plan, a result expressly rejected by In re Washington.
In conclusion, Debtors have failed to identify the appropriate legal provision for the relief requested, have failed to make an adequate legal showing to justify relief under a legally appropriate provision, and have requested relief which, if granted, would contravene this Court’s decision in In re Washington. For all the above reasons, the Court is inclined to DENY the motion.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Jose Castellanos Represented By Mark E Brenner
Joint Debtor(s):
Hiliana Castellanos Represented By Mark E Brenner
Movant(s):
Jose Castellanos Represented By Mark E Brenner Mark E Brenner
11:00 AM
Hiliana Castellanos Represented By Mark E Brenner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/25/18 EH
Docket 127
NONE LISTED -
Debtor(s):
Martin Caballero Represented By Luis G Torres
Joint Debtor(s):
Clementina Caballero Represented By Luis G Torres
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 3/13/17
From: 11/30/17, 1/25/18, 4/12/18, 6/14/18, 8/23/18, 10/18/18
EH
Docket 30
11/30/17
BACKGROUND
On February 21, 2017, Ernie Macias ("Debtor") filed his petition for chapter 13 relief. The Debtor’s case was filed by Alon Darvish ("Darvish"). On March 13, 2017, the Debtor’s case was dismissed for failure to file information.
On March 24, 2017, the Office of the United States Trustee ("UST") filed a Motion to Disgorge Attorney’s Fees ("Disgorgement Motion"). On June 13, 2017, the Court granted in part and denied in part the UST’s Disgorgement Motion (the "Disgorgement Order"). The Disgorgement Order required Darvish to file his disclosure of compensation, and to disgorge fees received from the Debtor back to him.
On September 20, 2017, the UST filed its Motion For An Order To Show Cause Why Alon Darvish Should Not Be Held In Contempt Of Court Pursuant To 11
U.S.C. § 105 And Federal Rule Of Bankruptcy Procedure 9020 (the "Motion for OSC"). The Motion for OSC specifically asserted that Darvish had failed to comply with any part of the Disgorgement Order. The UST’s Motion for OSC further asserted that Darvish had repeatedly failed to disclose compensation and had been sanctioned for such conduct under similar circumstances in at least 6 other cases. (Motion for OSC at 9).
11:00 AM
On October 20, 2017, the Court granted the Motion for OSC and ordered Darvish to show cause why he should not be held in contempt (the "OSC"). Darvish filed his response to the OSC on November 16, 2017 ("Response"). On November 21, 2017, the UST replied to the Response.
DISCUSSION
In his Response, Darvish indicated that his practice includes the filing of skeletal petitions for chapter 13 debtors for the purpose of stopping foreclosures. He indicated that when such skeletal petitions are filed, his software does not file the Disclosure of Compensation. Darvish asserts that he is a solo practitioner who is overwhelmed and understaffed and who is trying to rectify the issues in his practice. In Reply, the UST objects particularly to Darvish’s failure to outline specific steps he intends to take to remedy the issues at his firm. The UST is also concerned that Darvish has essentially admitted that his practice includes the filing of abusive petitions intended solely to avoid foreclosures. The UST requests that the Court continue the matter for Darvish to set forth specific remedial actions as ordered. The UST also requests that the Court separately consider whether a separate order to show cause is justified based on Darvish’s inherently abusive prevention practice.
TENTATIVE RULING
The Court agrees with the UST that Darvish’s explanation is insufficient. Darvish’s Response indicates clearly the reason for the failure to file disclosure of compensation forms. Despite this fact, he does not explain the ongoing failure to file these forms, particularly where he has previously been sanctioned for failing to disclose his compensation. The ongoing failure to file required documents, despite having already been sanctioned, supports the UST’s request for a specific plan of remediation. Absent such plan, Darvish may simply continue to rely on his thus far unreliable bankruptcy filing software.
Separately, the UST’s concern regarding Darvish’s practice of filing skeletal petitions is well-taken. In particular, if Darvish is advising his clients to file abusive petitions to
11:00 AM
delay foreclosure, such conduct may warrant further sanctions/discipline.
APPEARANCES REQUIRED.
Debtor(s):
Ernie Macias Represented By
Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/18/18 EH
Docket 33
NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Movant(s):
Jude Okwor Represented By
Javier H Castillo Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Jose Luis Tafoya Represented By Clay E Presley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Leonard Walter Frost Jr. Represented By Kristin R Lamar
Joint Debtor(s):
Joan Cheng Frost Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Rebecca Moore Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Harold Edward Correa Represented By Matthew D. Resnik
Joint Debtor(s):
David Corey White Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Cynthia M Gonzalez Represented By Paul Y Lee
Joint Debtor(s):
Guadalupe Siddiqui Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 31
NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Movant(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
John Morris Represented By
Julie J Villalobos
Joint Debtor(s):
Cassandra Morris Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Frank Prouty Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Joe Anthony Dominguez Sr. Represented By
Timothy L McCandless
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Michael Hernando Ferriola Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Rita Denise Pappalardo Represented By Aaron Lloyd
Joint Debtor(s):
Steven Joseph Pappalardo Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Dustin Taylor Sharp Represented By Dana Travis
Joint Debtor(s):
Stephanie Regina Sharp Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
John Ryan Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Charles Mickey Alligood Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Martha Diaz Represented By
Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Silvia R Segura Represented By Ricardo A Figueroa
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Engracia Alcala Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Shaun Besci Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jossue Aly Majana Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Norma Hermosillo Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #30 EH
Docket 14
NONE LISTED -
Debtor(s):
Daniel Javier Garcia Represented By Steven A Alpert
Movant(s):
Daniel Javier Garcia Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #29 EH
Docket 0
NONE LISTED -
Debtor(s):
Daniel Javier Garcia Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
David Meisland Represented By Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Joseph N Duguay II Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JACKIE MAY ZAPATA
EH
Docket 11
NONE LISTED -
Debtor(s):
Jackie May Zapata Pro Se
Movant(s):
Jackie May Zapata Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 81
NONE LISTED -
Debtor(s):
Darrin Hammond Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Hammond Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 275
NONE LISTED -
Debtor(s):
Michael Anthony Clay Represented By Dana Travis
Joint Debtor(s):
Brenda Ann Clay Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 170
NONE LISTED -
Debtor(s):
Cheryl Ann Hill Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 153
NONE LISTED -
Debtor(s):
Clarence White Represented By Steven A Wolvek
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 84
NONE LISTED -
Debtor(s):
Robert Warren Gillam Represented By James P Doan
Joint Debtor(s):
Diana Lynn Gillam Represented By James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 63
NONE LISTED -
Debtor(s):
Joseph Lane Hilliard Represented By Ronald W Ask
Joint Debtor(s):
Christine Vivian Hilliard Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
NONE LISTED -
Debtor(s):
Percival Inciong Represented By Brian C Miles
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 78
NONE LISTED -
Debtor(s):
Sheila Marie Dejesa Represented By Lisa H Robinson John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 67
NONE LISTED -
Debtor(s):
Celia Baeza Represented By
Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 128
NONE LISTED -
Debtor(s):
Robert A Ausler Represented By James T Lillard
Joint Debtor(s):
Marie A Galloway Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 70
NONE LISTED -
Debtor(s):
Adam Max Thewes Represented By Steven A Alpert
Joint Debtor(s):
Kristine Ann Thewes Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 67
NONE LISTED -
Debtor(s):
Michelle Ann Maki Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 110
NONE LISTED -
Debtor(s):
Michael Lee Barnes Represented By Todd L Turoci
Joint Debtor(s):
Belinda Ann Barnes Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 65
NONE LISTED -
Debtor(s):
Jesus Padilla Simental Represented By Bryn C Deb
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
NONE LISTED -
Debtor(s):
Patricia Eagan Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
NONE LISTED -
Debtor(s):
Chris Maddox Represented By Sanaz S Bereliani
Joint Debtor(s):
Christie Michelle Maddox Represented By Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
NONE LISTED -
Debtor(s):
David E. Laliberte Represented By Bernard J Gartland Timothy S Huyck
Joint Debtor(s):
Lori L. Laliberte Represented By Bernard J Gartland Timothy S Huyck
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 95
NONE LISTED -
Debtor(s):
Scott Allan Oswald Represented By Richard Lynn Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 77
NONE LISTED -
Debtor(s):
Allen J Sheerin Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 61
NONE LISTED -
Debtor(s):
John Stephen Puddy Jr. Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 123
NONE LISTED -
Debtor(s):
Zulu A Ali Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 140
NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
NONE LISTED -
Debtor(s):
Philipp Johannes Borner Represented By
D Justin Harelik
Joint Debtor(s):
Audrey Faustorilla Borner Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
NONE LISTED -
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
NONE LISTED -
Debtor(s):
Marion Schmidt Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 76
NONE LISTED -
Debtor(s):
Eric Kissell Represented By
William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
NONE LISTED -
Debtor(s):
Teresa M. Dearmond Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
NONE LISTED -
Debtor(s):
Daniel Jimenez Represented By
Raj T Wadhwani
Joint Debtor(s):
Addy Marlene Jimenez Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
NONE LISTED -
Debtor(s):
Kimberly Ann Bowen Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 62
NONE LISTED -
Debtor(s):
Michael Douglas Guerino Represented By Joseph M Hoats
Joint Debtor(s):
Xochitl Rodriguez Guerino Represented By Joseph M Hoats
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
NONE LISTED -
Debtor(s):
Arlene Wilson Jackson Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 63
NONE LISTED -
Debtor(s):
Charles Bowen Blanton Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Heddy Maria Blanton Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 61
NONE LISTED -
Debtor(s):
Anthony James Parker Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Cynthia Parker Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 70
NONE LISTED -
Debtor(s):
Jeffrey Otto Schellin Represented By John F Brady
Joint Debtor(s):
Jennifer Lynn Schellin Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
NONE LISTED -
Debtor(s):
Mary Jones Represented By
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 72
NONE LISTED -
Debtor(s):
Ashley Douglas Faulstich Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 85
NONE LISTED -
Debtor(s):
Joseph John Vargas Represented By Dana Travis
Joint Debtor(s):
Lydia Vargas Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 92
NONE LISTED -
Debtor(s):
Joseph Liebgott IV Represented By John F Brady
Joint Debtor(s):
Robby Jean Harrison Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 55
NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
NONE LISTED -
Debtor(s):
Richard LaFayatte Sellers Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #75 EH
Docket 68
NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 76
NONE LISTED -
Debtor(s):
Deborah Catherine Hamernik Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 52
NONE LISTED -
Debtor(s):
Julio Cesar Cacho Represented By
M Wayne Tucker
Joint Debtor(s):
Rosalie Ann Cacho Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
NONE LISTED -
Debtor(s):
Larry R. Hoddick Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Joyce Kelly Hoddick Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
NONE LISTED -
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 63
NONE LISTED -
Debtor(s):
Bryan D. Chriss Represented By Michael Smith Cynthia L Gibson Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 47
NONE LISTED -
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #80 EH
Docket 37
NONE LISTED -
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
NONE LISTED -
Debtor(s):
Veronica Salinas Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 26
NONE LISTED -
Debtor(s):
Jose Luis Castillo Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 28
NONE LISTED -
Debtor(s):
Fernando Herrera III Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
NONE LISTED -
Debtor(s):
Victor Warrenlee Anastasi Jr. Represented By Dana Travis
Joint Debtor(s):
Diane Lynne Anastasi Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
NONE LISTED -
Debtor(s):
Peter Hiroshi Kiyasu Represented By Steven A Alpert
Joint Debtor(s):
Jennifer Ann Kiyasu Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
NONE LISTED -
Debtor(s):
Denice Laree Grimes Represented By
M Wayne Tucker
Joint Debtor(s):
Derrick Gregory Grimes Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
NONE LISTED -
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 36
NONE LISTED -
Debtor(s):
Ruben Lopez Represented By
Terrence Fantauzzi
Joint Debtor(s):
Jessica Lopez Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 72
NONE LISTED -
Debtor(s):
Gwendolyn Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
NONE LISTED -
Debtor(s):
Trevor D. Washington Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 86
NONE LISTED -
Debtor(s):
Cary Lee Surface Represented By Lionel E Giron
Joint Debtor(s):
Amber Dawn Surface Represented By Lionel E Giron
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:01 AM
EH
Docket 64
NONE LISTED -
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
NONE LISTED -
Debtor(s):
William Richard Newborg Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Serina Rae Newborg Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 28
NONE LISTED -
Debtor(s):
Coe Lamoureux Represented By
W. Derek May
Joint Debtor(s):
Julie Lamoureux Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 22
NONE LISTED -
Debtor(s):
Elvira Stark Represented By
Robert L Firth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
NONE LISTED -
Debtor(s):
Cindy Louise Lawson Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
NONE LISTED -
Debtor(s):
Gary Ramirez Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Christina Faith Ramirez Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
NONE LISTED -
Debtor(s):
Artush Stepanian Represented By
James D. Hornbuckle
Joint Debtor(s):
Wendy L. Wilkie Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Harvey Everett Mosely Represented By Paul Y Lee
Joint Debtor(s):
Jean Ann Mosely Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
NONE LISTED -
Debtor(s):
Derek Brian Winkenweder Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 78
NONE LISTED -
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 36
NONE LISTED -
Debtor(s):
Cary Allen Griggs Represented By Ronald W Ask
Joint Debtor(s):
Heather Lynn Griggs Represented By Ronald W Ask
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
NONE LISTED -
Debtor(s):
Roberto Garcia Garcia Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Maria Martha Garcia Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
NONE LISTED -
Debtor(s):
Edward Uy Hidalgo Represented By Keith F Rouse
Joint Debtor(s):
Trixie Quijada Represented By Keith F Rouse
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
NONE LISTED -
Debtor(s):
Lena Dolores Wade Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
NONE LISTED -
Debtor(s):
Laquance Denise Mejia Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
NONE LISTED -
Debtor(s):
Frank Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Susan Garcia Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
NONE LISTED -
Debtor(s):
Natona Smith Represented By Natalie A Alvarado
Joint Debtor(s):
Tameiko Smith Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Felipe Gerardo Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 25
NONE LISTED -
Debtor(s):
David H Yopp Represented By Julie J Villalobos
Trustee(s):
Charles W Daff (TR) Pro Se
11:01 AM
EH
Docket 31
NONE LISTED -
Debtor(s):
Charles Mickey Alligood Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
NONE LISTED -
Debtor(s):
William Thomas Pedrino Represented By Todd L Turoci
Joint Debtor(s):
Terri Lyn Pedrino Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
NONE LISTED -
Debtor(s):
Gloria Ann Dodson Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
NONE LISTED -
Debtor(s):
Ruben L Benitez Represented By Sundee M Teeple
Joint Debtor(s):
Christina M Benitez Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 25
NONE LISTED -
Debtor(s):
Wayne Anthony King Represented By Dana Travis
Joint Debtor(s):
Traci Ann Zweck Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
NONE LISTED -
Debtor(s):
Don Gurule Represented By
Christopher Hewitt
Joint Debtor(s):
Elaine Gurule Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Carmen Lopez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC dba MR. COOPER
EH
Docket 133
11/13/18
Service: Proper Opposition: YES
Debtors dispute that they are behind 9 payments and request a 30-day continuance to establish the payment history.
APPEARANCES REQUIRED.
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 11/6/18 EH
Docket 62
Service is Proper Opposition: None
Based on the fact that Debtor appears to have completed his Chapter 13 plan, and based on the evidence submitted by Movant which appears to indicate that Debtor has made the last eighteen monthly payments, the Court is inclined to GRANT the motion to the extent of lifting the automatic stay as it applies to the bankruptcy estate only.
GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Herbert Anderson Jr. Represented By Todd B Becker
Movant(s):
Nationstar Mortgage, LLC. Represented By Michael Daniels
10:00 AM
Trustee(s):
Darlene C Vigil
Rod Danielson (TR) Pro Se
10:00 AM
EH
Docket 58
11/13/18
Service: Proper Opposition: No
GRANT pursuant to § 362(d)(1). GRANT waiver of 14-day stay. GRANT as to ¶¶ 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Ricardo F Estrellado Jr Represented By Thomas Shanner
Joint Debtor(s):
Lilian P Estrellado Represented By Thomas Shanner
Movant(s):
Nationstar Mortgage LLC, its Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 30
NONE LISTED -
Debtor(s):
Jeanne Marie Jackson Represented By
D Justin Harelik
Movant(s):
Freedom Mortgage Corporation Represented By
Kristin A Zilberstein Kelly M Raftery Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALTA VISTA CREDIT UNION
From: 9/11/18 EH
Docket 44
NONE LISTED -
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Movant(s):
Alta Vista Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 84
11/13/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and GRANT order designating Debtor as "borrower" under Cal. Civil Code § 2920.5. DENY request for APO as moot
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Cynthia Ramos Represented By Hayk Grigoryan
Movant(s):
SPECIALIZED LOAN SERVICING Represented By
Carlos R Hernandez-Vivoni Mark S Krause
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
From: 10/16/18 EH
Docket 52
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT relief from § 1301(a) co-debtor stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written oppositions is presented at the hearing, the hearing may be continued.
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee Jonetta A Graves
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CITIBANK NA
EH
Docket 35
NONE LISTED -
Debtor(s):
Kevin E Horton Represented By Todd L Turoci
Joint Debtor(s):
Manuel F. Dela Rosa Represented By Todd L Turoci
Movant(s):
Citibank, N.A. Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 10/2/18, 11/6/18 EH
Docket 29
10/02/2018
Service is Proper Opposition: YES
Parties to indicate whether there has been progress on an agreement for an APO. APPEARANCES REQUIRED.
Debtor(s):
David Bruce Bremer Represented By Paul Y Lee
Joint Debtor(s):
Tina Marie Bremer Represented By Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CARDENAS THREE LLC
EH
Docket 53
11/13/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and DENY request to lift the co-debtor stay as no co-debtor was served. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Movant(s):
Cardenas Three, LLC, a California Represented By
Coby Halavais
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 26
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Alice Chow Represented By
Andrew Nguyen
Movant(s):
Santander Consumer USA Inc., as Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 30
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT relief from the co-debtor stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Michael D. Wickham Represented By
M Wayne Tucker
Joint Debtor(s):
JoAnn Y. Wickham Represented By
M Wayne Tucker
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 17
11/13/18
Notice: Proper Opposition: None
GRANT pursuant to §§ 362(d)(1) and (d)(2). GRANT waiver of 14-day stay.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Carlington Hugh Whyne Pro Se
Joint Debtor(s):
Tia Antionette Whyne Pro Se
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
From: 10/16/18 EH
Docket 11
Service is Proper Opposition: None
The Court notes that rather than attach the appropriate exhibits, it appears that Movant has inadvertently replaced those exhibits with a second copy of the motion. As a result, Movant has failed to establish that it has a security interest in the subject property nor has Movant established the fair market value of the property. Therefore, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Keith T. Marshall Represented By Christopher J Langley
Joint Debtor(s):
Sonia M. Marshall Represented By Christopher J Langley
10:00 AM
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: QUALITY ACCEPTANCE LLC
CASE DISMISSED 11/8/18
EH
Docket 16
NONE LISTED -
Debtor(s):
Charles Mickey Alligood Represented By Alon Darvish
Movant(s):
Quality Acceptance, LLC Represented By Robert S Lampl
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 15
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Paul Stephen Fletcher Represented By Nicholas M Wajda
Joint Debtor(s):
Gina Apolinar Fletcher Represented By Nicholas M Wajda
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 12
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). DENY request under § 362(d)(2) for lack of cause shown. GRANT waiver of 4001(a)(3) stay. GRANT relief from co- debtor stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Kellie C. Baker Represented By Edward T Weber
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii) 28281 Robert St., Perris, California
MOVANT: MATTHEW GREENE & LORI GREENE
EH
Docket 42
11/13/18
Notice: Proper Opposition: None
The instant case was filed within one year of the dismissal of the Debtor’s prior case, Case No. 17-15347. Thus, the Debtor was required to seek to continue the stay pursuant to § 362(c)(3). The language of § 362(c)(3) plainly states that the Court cannot extend the stay until "after notice and hearing completed before the expiration of the 30-day period". Here, the 30-day period expired on October 14, 2018, and the hearing on Debtor’s Motion was as held and denied on October 30, 2018. Based on the failure to obtain an order prior to the expiration of the 30-day period, no stay is in effect. The Motion is GRANTED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Susan Violet Guillot Represented By Gary S Saunders
Movant(s):
Matthew & Lori Greene Represented By Coby Halavais
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 9
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and § 362(d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Phillip David Johnson Represented By Kristin R Lamar
Joint Debtor(s):
Miriam Carreon Johnson Represented By Kristin R Lamar
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 15
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and § 362(d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Stephanie F Grijalva-Gould Represented By Brian J Soo-Hoo
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: ACAR LEASING LTD
EH
Docket 7
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rudy Avila Represented By
Andrew Nguyen
Movant(s):
ACAR Leasing LTD dba GM Represented By Jennifer H Wang
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: GATEWAY ONE LENDING & FINANCE
EH
Docket 8
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and § 362(d)(2). GRANT waiver of 4001(a)(3) stay. GRANT request for lifting of co-debtor stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Arlene Bada Represented By
James P Doan
Movant(s):
Gateway One Lending & Finance Represented By
Karel G Rocha
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: PACIFIC RIM DISTRIBUTION CENTER LLC FROM 10/30/18
EH
Docket 47
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). DENY request pursuant to § 362(d)
for lack of cause shown. GRANT waiver of 4001(a)(3) stay. DENY all remaining requests for relief for lack of cause shown.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Pacific Rim Distribution Center, Represented By
Kurt Rifbjerg
10:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 9
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and § 362(d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Kent Christian Represented By David L Nelson
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: VADANY SOPHAN
EH
Docket 12
11/13/18
The Debtor’s prior case was dismissed for failure to make payment and based on a failure to provide adequate proof of income from employment as an Uber/Lyft Driver. The Debtor has provided evidence that he has obtained new employment with regular income since the prior filing. The Court is inclined to GRANT the Motion as having overcome the presumption that the case was not filed in good faith.
APPEARANCES REQUIRED.
Debtor(s):
Vadany Sophan Represented By Lionel E Giron
Movant(s):
Vadany Sophan Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: ANTOINE HOSSEIN BABAI
EH
Docket 27
NONE LISTED -
Debtor(s):
Antoine Hossein Babai Represented By Christopher Hewitt
Movant(s):
Antoine Hossein Babai Represented By Christopher Hewitt
12:00 PM
(ADVANCED FROM 2:00 PM CALENDAR)
From: 10/2/18, 10/30/18 Also #28 - #33
EH
Docket 75
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
12:00 PM
(ADVANCED FROM 2:00 PM CALENDAR)
From: 10/30/18 Also #27 - #33
EH
Docket 101
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
12:00 PM
(ADVANCED FROM 2:00 PM CALENDAR)
From: 10/30/18 Also #27 - #33
EH
Docket 97
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Jerry Seelig Represented By
Sara Chenetz Bradley A Cosman
12:00 PM
(ADVANCED FROM 2:00 PM CALENDAR)
Also #27 - #33
EH
Docket 151
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
12:00 PM
(FINAL HEARING)
(ADVANCED FROM 2:00 PM CALENDAR)
From: 8/20/18, 9/25/18, 10/16/18 Also #27 - #33
EH
Docket 11
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall
12:00 PM
12:00 PM
(FINAL HEARING)
(ADVANCED FROM 2:00 PM CALENDAR)
From: 8/20/18, 9/25/18, 10/16/18 Also #27 - #33
EH
Docket 7
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall
12:00 PM
12:00 PM
(ADVANCED FROM 2:00 PM CALENDAR)
From: 8/28/18, 9/25/18, 10/30/18 Also #27 - #32
EH
Docket 4
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
2:00 PM
From: 12/19/17, 4/24/18, 10/9/16, 10/16/18
EH
Docket 306
11/13/2018
The Application for Compensation was amended on 10/30/2018 to correct errors in the calculations submitted by Applicant. The Application having been corrected and their being no objections by interested party to the Application, finding that the amounts are otherwise reasonable, the Court is inclined to GRANT the Application, allowing fees in the amounts stated in the October 30, 2018, corrected amounts.
APPEARANCES WAIVED. Movant to lodge an order within 7 days. 10/16/18
On May 11, 2016, Allied Injury Management, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On June 6, 2016, the Court approved the employment application of Fredman Lieberman Pearl LLP to serve as counsel to Debtor ("Applicant"). On November 17, 2016, the Court approved an application to expand the scope of Applicant’s representation. On November 30, 2018, the Court ordered the appointment of a Chapter 11 Trustee and, five days later, David Goodrich was appointed as the Chapter 11 Trustee.
On October 6, 2017, Applicant filed an application for compensation for an aggregate amount of $282,682.13 covering the period of May 11, 2016 to December 5, 2016. Applicant and UST have twice stipulated to a continuance of the hearing.
2:00 PM
Pursuant to 11 U.S.C. § 330(a)(1), the court may award reasonable compensation for actual, necessary services. The court has an independent duty to review the fee application in the absence of objections. See 11 U.S.C. § 330(a)(2). The court "will not indulge in extensive labor and guesswork to justify a fee for an attorney who has not done so himself." In re Taylor, 66 B.R. 390 (Bankr. W.D. Pa. 1986).
11 U.S.C. § 330(a)(3) provides factors to be considered in determining the reasonableness of requested compensation. These factors include time spent, rates charged, necessity of the service, reasonableness of the service, expertise of attorney, and comparable market rates.
First of all, the Court notes that Applicant’s fee application is somewhat unclear. The application requests $278,079 for professional fees related to the main bankruptcy case and three adversary proceeding, and a summary identifying the amount of fees in each proceeding is provided on the tables that spans pages 6 and 7 of the fee application. That tables identifies fees in the amount of $242,270.50 in the main case. Nevertheless, the very next table, which deals with categories of tasks performed and spans pages 7-8 of the fee application, only identifies
$227,244.50 in fees for the main case. It does not appear that the fee application addresses or explains this discrepancy of $15,026, and, therefore, the Court is inclined to reduce the fee application by $15,026.
The "Summary of Fees for the Main Case" table is additionally problematic because of the fact that the majority of the rows and tables in this summary do not add up to the identified total. While the miscalculations are not egregious, and are sometimes to the disadvantage of Applicant, the errors force put the credibility of the fee application as a whole, including its more than 100 pages of billing entries, into question. The inherent contradictions of the fee application continue when comparing the summary tables with the more detailed tables in the application’s sections on the adversary matters.
Additionally, the Court notes that the first two pages of Exhibit 4 include billing for services provided which predate the effective date of the employment order. Those billing entries related to services provided by Mr. Lieberman are also lumped entries. For those two reasons, the Court is inclined to reduce the fee application by an additional amount of $6,068.
2:00 PM
Otherwise, the Court has reviewed the fee application and finds the requested fees and costs to be generally reasonable. The Court is inclined to CONTINUE the hearing for Counsel to file an amended application correcting the arithmetical errors and apparent contradictions throughout the fee application.
APPEARANCES REQUIRED.
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Fredman Lieberman Pearl LLP Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
EH
Docket 87
NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
10:00 AM
EH
Docket 18
NONE LISTED -
Debtor(s):
Renard Louis Hamilton Pro Se
Joint Debtor(s):
Regina Elizabeth Hamilton Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 13
NONE LISTED -
Debtor(s):
Danny Arthur Goodro Represented By Dina Farhat
Joint Debtor(s):
Marina Hernandez Goodro Represented By Dina Farhat
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 11
NONE LISTED -
Debtor(s):
Hugo Ugarte Represented By
Michael H Colmenares
Joint Debtor(s):
Teresa Ugarte Represented By
Michael H Colmenares
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Jay J. Goodman Represented By Christopher Hewitt
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 150
NONE LISTED -
Debtor(s):
Richard C Cox Jr Represented By Summer M Shaw
Movant(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
Trustee(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
11:00 AM
Adv#: 6:18-01123 First Home Bank v. Karadas
From: 10/17/18 Also #7
EH
Docket 11
On November 20, 2017 ("Petition Date"), Sean Karadas ("Debtor") filed his petition for chapter 7 relief. Charles Daff is the duly appointed chapter 7 trustee ("Trustee"). Among the assets of the estate are Small Business Administration loan funds totaling $327,653 (the "SBA Loan") obtained by the Debtor from First Home Bank for his wholly owned corporation, Pacific Trium, Inc. ("Pacific Trium") Trustee has evidence that almost immediately following the disbursement of loan funds to the Debtor, that the Debtor transferred the funds from Pacific Trium’s account to his personal account on May 31, 2017, and then from his account to his son’s account on June 20, 2017.
On May 24, 2018, First Home Bank filed a dischargeability action under §§ 523 and 727 against the Debtor objecting to the discharge of the Debtor’s personal guaranty and alleging fraud and misrepresentation by Debtor in obtaining the SBA Loan.
On September 11, 2018, First Home Bank filed a Motion for Consent Order re: Claim of Creditor First Home Bank as Nondischargeable ("Motion"). The Motion specifically seeks approval of the parties’ stipulation as to nondischargeability of the personal guaranty and separately seeks dismissal of the remaining claims. Although the Motion acknowledges that parties in interest may timely file a response to the
11:00 AM
Motion to pursue the §727 action, the Motion is deficient in that the proof of service fails to indicate service on the Debtor’s creditors. To date, the Court’s claims register reflects that 17 claims have been filed against the Debtor’s estate and as such, there are interested parties who may be interested in pursuing the §727 action.
Based on the foregoing, the Court is inclined to CONTINUE the hearing on the Motion to November 14, 2018, at 11:00 a.m. for the Debtor to serve the Debtor’s creditors.
APPEARANCES REQUIRED.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Movant(s):
First Home Bank Represented By Joshua N Kastan
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Adv#: 6:18-01123 First Home Bank v. Karadas
From: 7/25/18, 10/24/18 Also #6
EH
Docket 1
NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
11:00 AM
Docket 22
NONE LISTED -
Debtor(s):
Lisa Caron Represented By
Bruce A Wilson
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01147 Lloyd v. Pound
From: 9/5/18 Also #10
EH
Docket 1
NONE LISTED -
Debtor(s):
Paul Pound Represented By
Todd L Turoci
Defendant(s):
Paul M Pound Represented By Todd L Turoci
Plaintiff(s):
April Lloyd Represented By
Chane Buck
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01147 Lloyd v. Pound
EH
Docket 6
NONE LISTED -
Debtor(s):
Paul Pound Represented By
Todd L Turoci
Defendant(s):
Paul M Pound Represented By Todd L Turoci
Movant(s):
April Lloyd Represented By
Chane Buck
Plaintiff(s):
April Lloyd Represented By
Chane Buck
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01141 Balderas et al v. Valderrama
Also #12 EH
Docket 12
On March 21, 2018, Frank Valderrama ("Debtor") filed a Chapter 7 voluntary petition. On July 2, 2018, Debtor received a discharge.
On June 25, 2018, Elizabeth Balderas & Jose Carrillo (collectively, "Plaintiffs") filed a complaint against Debtor for non-dischargeability pursuant to 11 U.S.C. § 523(a)(2) (A).
On July 17, 2018, Debtor filed a motion to dismiss for failure to state a claim. On August 10, 2018, Plaintiffs filed their opposition. On September 10, 2018, the Court granted the motion, dismissing the complaint with leave to amend.
On September 28, 2018, Plaintiffs filed an amended complaint (the "FAC"). On
2:00 PM
October 19, 2018, Debtor filed another motion to dismiss. On October 31, 2018, Plaintiffs filed their opposition.
MOTION TO DISMISS STANDARD
In order to avoid dismissal pursuant to Civil Rule 12(b)(6), a complaint must allege sufficient factual matter, which if accepted as true, would "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when a court can draw a reasonable inference that the defendant is liable for misconduct. Id. The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
NON-DISCHARGEABILITY STANDARD
As a preliminary note, the Court notes that the format and opposition of the FAC is rather confusing. The adversary proceeding cover sheet and the first page of the complaint identify the complaint as a non-dischargeability complaint under 11 U.S.C.
§ 523(a)(2) [not itself an actual provision] and § 523(a)(2)(A); three causes of action are likewise identified: (1) breach of written contract; (2) breach of fiduciary duty; and
fraud.
The adversary cover sheet, in the section titled "nature of suit," also checks § 523(a) (4). As was made clear in the previous motion to dismiss tentative ruling, the Court will not address a cause of action which is not clearly asserted in the complaint. Here, once again, Plaintiffs have not actually mentioned § 523(a)(4) in the entirety of the complaint, and, therefore, the Court will construe the FAC as solely a request under § 523(a)(2)(A). As a result, the Court will not address Debtor’s argument that Plaintiffs
2:00 PM
are time-barred from bringing a § 523(a)(4) claim.
11 U.S.C. § 523(a)(2)(A) states:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
The elements of a § 523(a)(2)(A) claim are well-established: (a) the debtor made representations; (b) which were known to be false; (c) the representations were made with the intention and purpose of deceiving the creditor; (d) the creditor relied on such representations; (e) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
As noted by Debtor, FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)(A) non- dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008). "In order to properly plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." Id.
Here, while its organization is rather confusing, the FAC has made substantial progress towards addressing the concerns raised regarding the original complaint. Specifically, the FAC does contain allegations which, if liberally construed, amount to a false representation of a material fact. For example, paragraph 35 states:
2:00 PM
Each time Plaintiffs made a payment, Debtor assured them that progress was being made on the project. Debtor assured them that materials and construction were being expended [sic] with the money he received from Plaintiffs. Such representations were false in that in his meeting of the credits [sic] Debtor testified under oath that he did not use any money he received by Plaintiffs to pay for material or labor.
The FAC also contains different variations, in different locations, of the following assertion, found in ¶ 41: "Debtor intentionally withheld the true information from Plaintiffs so that Plaintiffs continue [sic] to pay Debtor." Regarding the element of reliance, the Court notes that ¶ 32 concludes by stating: "Plaintiffs would not have paid Debtor additional funds had they known that Debtor was keeping the money for himself," which could be construed as alleging reliance on the part of Plaintiffs.
Debtor has not argued that Plaintiffs have failed to adequately allege damages, and it seems clear that the element of damages had been adequately asserted.
Turning to the heightened pleading standard of FED. R. CIV. P. Rule 9(b), it would appear that the FAC, if liberally construed, does contain allegations of fraudulent representations with sufficient particularity. Specifically, for example, paragraph 35, reproduced above, appears to allege that Debtor asserted he was spending the money on materials and constructions each time that a payment was made. Given that paragraphs ¶¶ 36 and 38 identify a list of dates when payments were made, it would appear that, taking the FAC as a whole, there are adequate assertions of a particular representation, made by a particular person, on a particular date.
In Debtor’s motion to dismiss, Debtor appears to assert that the FAC fails to plead fraud with particularity because "[t]here is no allegation that any payment was made as a result of any specific misrepresentation." [Dkt. No. 12, pg. 8]. As the Court noted above, there are certain sections of the FAC, such as ¶ 32, which assert that Debtor would not have made payments to Debtor, if not for Debtor’s representation that the money was being spent on materials and construction. It would appear that such allegations are adequate to allege fraud with particularity. The Court declines to address Debtor’s argument that Plaintiffs cannot establish reasonable reliance because
2:00 PM
the reasonableness of such reliance is a factual issue not ripe for determination at this time.
Debtor also argues that the first cause of action, breach of contract, should be dismissed as a matter of law because the cause of action is not a basis to hold a debt to be non-dischargeable. The Court notes, however, that the tentative ruling of August 29, 2018, pointed out that if Plaintiffs wished to obtain a money judgment, Plaintiffs would need to articulate the legal basis for that debt so that the Court would have a basis to liquidate the debt. While it is not clear from the face of the FAC, it would appear that the cause of action for breach of contract was not intended to serve as a basis for non-dischargeability, but, rather, a basis for a money judgment. Furthermore, given the references to state law and the absence of any reference to 11 U.S.C. § 523(a)(4), it appears that the second cause of action, for breach of fiduciary duty, also may serve the same purpose. While it is debatable whether "breach of contract" and "breach of fiduciary duty" should serve as independent causes of action, the Court understands them to serve as simply providing the legal basis of the alleged debt, which would only be relevant if Plaintiffs were to prevail on the § 523(a)(2)(A) claim.
Finally, the Court agrees with Debtor that Elizabeth Balderas lacks standing because she is neither a party to the contract nor an express beneficiary thereof. Plaintiffs argue that: "The contract was entered into during the marriage, therefore, it is community property. Certainly, Plaintiff Balderas has a right to recover money paid to Debtor whether by her individually or her deceased husband which was paid with community funds." [Dkt. No. 15, pg 13]. This appears to be incorrect as a matter of law. See, e.g., Hatchwell v. Blue Shield of California, 198 Cal. App. 3d 1027, 1036 (Cal. Ct. App.
1988) ("Denise contends that she may maintain the action pursuant to her community property interest in the contract . . . In Austero v. Nat’l Casualty Co., 62 Cal. App 3d 511 (Cal. Ct. App. 1976), the court rejected this contention, stating: ‘Whatever plaintiff’s property rights with respect to the policies may be, the fact remains that she is not a party to the contracts."); see also Gutierrez v. State Farm Mut. Ins. Co., 2012 WL 398828 at *3 (N.D. Cal. 2012) ("[Community property statutory presumptions] do not, however, confer standing on a non-contracting spouse.").
To the extent that Plaintiffs argue that Elizabeth Balderas was a party to the contract or the partnership agreement, the Court rejects such assertions as implausible given that Plaintiffs have attached a copy of the contract which shows that Elizabeth
2:00 PM
Balderas was not a party. Plaintiffs counsel is requested to review FED. R. BANKR. P. Rule 9011(b), and is reminded that factual misrepresentations or frivolous legal arguments may warrant sanctions.
The Court is inclined to GRANT the motion to the extent of dismissing Elizabeth Balderas from the action, with leave to amend, and otherwise DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Defendant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Movant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Plaintiff(s):
Elizabeth Balderas Represented By John F Bazan
Jose Carrillo Represented By
John F Bazan
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01141 Balderas et al v. Valderrama
From: 8/29/18 Also #11
EH
Docket 1
NONE LISTED -
Debtor(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Defendant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Plaintiff(s):
Elizabeth Balderas Represented By John F Bazan
Jose Carrillo Represented By
John F Bazan
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
EH
Docket 31
NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01064 Gerges et al v. Bastorous et al
From: 5/9/18, 5/16/18, 7/11/18, 8/22/18, 10/31/18
Also #13 EH
Docket 1
NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mona Gerges Represented By
Louis J Esbin
Rafet Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01179 WHITMORE v. Strata Forest Products, Inc.
EH
Docket 1
NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Strata Forest Products, Inc. Pro Se
Plaintiff(s):
ROBERT S WHITMORE Represented By Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
2:00 PM
Adv#: 6:18-01180 Whitmore v. Sierra Forest Products, Inc. dba Atlas Lumber
EH
Docket 1
NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Sierra Forest Products, Inc. dba Atlas Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
2:00 PM
Adv#: 6:14-01288 Grobstein v. Wakefield
Docket 54
NONE LISTED -
Debtor(s):
David Wayne Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Defendant(s):
Elise Wakefield Pro Se
Joint Debtor(s):
Elise Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Movant(s):
Howard Grobstein Represented By Alan W Forsley
Plaintiff(s):
Howard Grobstein Represented By Alan W Forsley
Trustee(s):
Howard B Grobstein (TR) Represented By
2:00 PM
Alan W Forsley
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
Also #19 - #21
EH
Docket 98
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Movant(s):
LIBERTY ORTHOPEDIC Represented By
2:00 PM
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
Also #18 - #21
EH
Docket 99
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Movant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
2:00 PM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
Also #18 - #21
EH
Docket 97
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Movant(s):
UNIVERSAL ORTHOPAEDIC Represented By
2:00 PM
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18, 8/22/18, 10/31/18
Also #18 - #20
EH
Docket 1
NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
2:00 PM
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
EH
Docket 1
NONE LISTED -
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Pro Se
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
Plaintiff(s):
Irma Cantu Represented By
Leonard J Cravens
Trustee(s):
Rod (MJ) Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01178 United States Of America v. Cornelius
EH
Docket 1
NONE LISTED -
Debtor(s):
Richard Cornelius Represented By Paul Y Lee
Defendant(s):
Richard Cornelius Pro Se
Joint Debtor(s):
Naomi Rodriguez-Cornelius Represented By Paul Y Lee
Plaintiff(s):
United States Of America Represented By Elan S Levey
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01181 Tarhuni v. Lakeview Loan Servicing LLC et al
EH
Docket 4
NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing LLC Represented By Jonathan C Cahill
Loancare LLC Represented By Jonathan C Cahill
Movant(s):
Lakeview Loan Servicing LLC Represented By Jonathan C Cahill
Loancare LLC Represented By Jonathan C Cahill
Plaintiff(s):
Melanie Tarhuni Pro Se
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 45
NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Jaelyn Roylene Young Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 27
NONE LISTED -
Debtor(s):
Karen Jannette Rimola Represented By Norma Duenas
Movant(s):
Karen Jannette Rimola Represented By Norma Duenas Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/28/18, 8/30/18, 11/8/18 EH
Docket 113
NONE LISTED -
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SHERRI SHAFIZADEH
CASE DISMISSED 11/13/18
EH
Docket 12
NONE LISTED -
Debtor(s):
Denise Valencia Pro Se
Movant(s):
Sherri S Shafizadeh Represented By Barry L O'Connor
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 47
On October 10, 2016, Ingeborg Preisendanz ("Debtor") filed a Chapter 13 voluntary petition. On November 21, 2016, Debtor’s Chapter 13 case was confirmed.
On September 22, 2018, Debtor’s attorney, Danny Agai ("Applicant"), filed an application for compensation requesting $1,100. Applicant requests $350 for opposing a motion to dismiss (approved by Trustee) and $750 for opposing a motion for relief from the automatic stay. On September 25, 2018, Trustee filed comments requesting billing records to justify the $750 for opposition to the motion for relief from the automatic stay. On October 6, 2018, Applicant filed a supplemental exhibit with billing records. On October 22, 2018, Applicant set the matter for hearing.
The Court notes that the billing records provided by Applicant contain lumped entries. Nevertheless, in the absence of any further objection by Trustee, noting the apparent reasonableness of the fees charged, and that Applicant was successful in getting the motion for relief from stay denied, the Court is inclined to APPROVE the fees in their entirety.
11:00 AM
Subject to further objection by Trustee, the Court is inclined to APPROVE the application.
Debtor(s):
APPERANCES REQUIRED.
Ingeborg Margarete Preisendanz Represented By
Danny K Agai
Movant(s):
Ingeborg Margarete Preisendanz Represented By
Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 26
NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Scott Kosner
Joint Debtor(s):
Kenya Lashawn Britt Represented By Scott Kosner
Movant(s):
Adam Brian Britt Represented By Scott Kosner
Kenya Lashawn Britt Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Rebecca Moore Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/4/18, 8/30/18 EH
Docket 24
NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Movant(s):
Irma Dalia Cantu Represented By Leonard J Cravens Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jose Antonio Velasco Represented By Danny K Agai
Joint Debtor(s):
Lilian Micaela Velasco Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Debra Kristeen Schuler Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
David Bloch Represented By
Julie J Villalobos
Joint Debtor(s):
Sarah Bloch Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Belinda Pastran Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Sharon Lee Martinez Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
J Jesus Hernandez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Chadwick Otieno Ochieng Represented By John F Brady
Joint Debtor(s):
Christine Achieng Matoka Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Ignacio Diaz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Cameron Hudson Represented By Stuart R Simone
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Moises Alvarez Represented By Todd L Turoci
Joint Debtor(s):
Martha Alvarez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Nick Caropino Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jon Patrick Park Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jesus Gutierrez Represented By
Inez Tinoco-Vaca
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Maribel Villarreal Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
DeBora Debbie Walker Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Juan Aguilera Represented By A Mina Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Kellie C. Baker Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
David John Stoykovich Jr. Represented By Todd L Turoci
Joint Debtor(s):
Merlina Lynn Burton Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Susan Violet Guillot Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Laura Darice Jambazian Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Billy Joe Osuna Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Diana L Montaya Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Michael Ferriola Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Dennis McKusick Represented By Michael Avanesian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Javier Valadez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Maria Mercado Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Sumanta Chakravarti Represented By Paul Y Lee
Joint Debtor(s):
Madhumita Chakravarti Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Norberto Calalay Jimenez Represented By Christopher J Langley
Joint Debtor(s):
Araceli Corrales Jimenez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Ricky Antonio Scott Represented By Eva M Hollands
Joint Debtor(s):
Shemida Shiloni Scott Represented By Eva M Hollands
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Ertun Reshat Represented By
April E Roberts
Joint Debtor(s):
Hale Reshat Represented By
April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Erika Lynn Pruitt Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Stacy Scott Patton Sr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jingyi Luo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jennifer Romero Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Hazel Harrison Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 223
NONE LISTED -
Debtor(s):
Taylor J. Bretz Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 136
NONE LISTED -
Debtor(s):
Martin Caballero Represented By Luis G Torres
Joint Debtor(s):
Clementina Caballero Represented By Luis G Torres
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 121
NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 86
NONE LISTED -
Debtor(s):
Christopher Lee Sumners Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 115
NONE LISTED -
Debtor(s):
ROBERT A HAGUE Represented By Manfred Schroer
Joint Debtor(s):
DIANNE L HAGUE Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 80
NONE LISTED -
Debtor(s):
Gracey Hunter Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 116
NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
NONE LISTED -
Debtor(s):
Warren Alan Hall Represented By Lionel E Giron
Joint Debtor(s):
Kelly Suzanne Hall Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
NONE LISTED -
Debtor(s):
Teresa A Salvail Represented By Julie J Villalobos
Joint Debtor(s):
Michael D Salvail Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
NONE LISTED -
Debtor(s):
Cirenio Merida Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
NONE LISTED -
Debtor(s):
Trevor D. Washington Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Washington Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
NONE LISTED -
Debtor(s):
Jose Martinez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Aurora Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
NONE LISTED -
Debtor(s):
Michael Moreno Represented By Andrew Nguyen
Joint Debtor(s):
Azucena Moreno Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
NONE LISTED -
Debtor(s):
Lawrence A McCoy Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCATION
EH
Docket 49
NONE LISTED -
Debtor(s):
Saul Bautista Represented By
James T Lillard
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Grace Chang-Rodriguez Ann Nguyen
Kennessa C Hartin Delesia Graham Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CITIMORTGAGE, INC.
EH
Docket 67
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
David Wark Represented By
Christopher Hewitt
Joint Debtor(s):
Michelle Wark Represented By Christopher Hewitt
Movant(s):
CitiMortgage, Inc. Represented By
10:00 AM
Trustee(s):
Anthony C Kesterson Helen L Williams Cheryl A Knapmeyer Robert P Zahradka
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK
EH
Docket 198
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Vonetta M Mays Represented By Christopher J Langley
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
CASE DISMISSED 11/1/18
From: 5/15/18, 6/26/18, 8/1/18, 8/21/18, 10/16/18
EH
Docket 66
Service is Proper Opposition: Yes
Parties to apprise Court regarding extent of arrears and status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Margaret Crain Represented By Yelena Gurevich
Movant(s):
Wells Fargo Bank, N.A. Represented By
10:00 AM
Trustee(s):
Jamie D Hanawalt Jessica L Carter Tavon Taylor
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
From: 11/6/18 EH
Docket 73
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Chase D Chung Represented By Daniel C Sever
Movant(s):
WELLS FARGO BANK, N.A., Represented By Shreena Augustin Seth Greenhill April Harriott Theron S Covey Sean C Ferry
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SUN WEST MORTGAGE COMPANY INC
EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3 and 12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Loretta Chavis Represented By Dan Perry
Movant(s):
Sun West Mortgage Company, Inc., Represented By
Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 10/16/18, 11/6/18 EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: QUICKEN LOANS INC
CASE DISMISSED 10/18/18
EH
Docket 53
NONE LISTED -
Debtor(s):
Raymond Ballejos Represented By Natalie A Alvarado
Joint Debtor(s):
Veronica Ballejos Represented By Natalie A Alvarado
Movant(s):
Quicken Loans Inc., its successors Represented By
Nichole Glowin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 67
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. DENY request for relief from § 1301(a) stay because Movant has failed to serve the co-debtor at the address identified in Schedule H. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Cheryl Linda Fernandez Represented By Matthew D. Resnik
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu Jamie D Hanawalt
10:00 AM
Trustee(s):
Gilbert R Yabes
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 77
NONE LISTED -
Debtor(s):
Ridge B. M. Robert Represented By Gene Koon
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Sheryl K Ith
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
EH
Docket 41
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
John L Velasquez Represented By Paul Y Lee
Joint Debtor(s):
Christi J Velasquez Represented By Paul Y Lee
Movant(s):
JPMorgan Chase Bank, National Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WVMF FUNDING LLC
From: 11/6/18 EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Movant(s):
WVMF Funding, LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
From: 11/13/18 EH
Docket 30
11/13/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. GRANT relief from the co-debtor stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Michael D. Wickham Represented By
M Wayne Tucker
Joint Debtor(s):
JoAnn Y. Wickham Represented By
M Wayne Tucker
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Michelle Barrera Represented By Paul Y Lee
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
MOVANT: MERCEDES-BENZ FINANCIAL SERVICES USA LLC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Crystal Del Rosario Represented By Terrence Fantauzzi
Movant(s):
Mercedes-Benz Financial Services Represented By
Rebecca A Caley
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
CASE DISMISSED 10/29/18
EH
Docket 9
Service is Proper Opposition: None
The instant case was dismissed on October 29, 2018, and, as a result, the automatic stay terminated pursuant to 11 U.S.C. S 362(c)(1)-(2). Therefore, the Court is inclined to DENY all requests for relief which are not in rem requests as moot. The Court is inclined to DENY relief from stay pursuant to § 362(d)(4) for lack of cause shown.
Movant’s proffered bases for a bad faith finding are: (1) multiple filings affecting the property; and (2) that the instant filing was a skeletal filing. Regarding Debtor’s previous filings, Debtor had a case summarily dismissed more than six years ago, and had an additional case dismissed in May 2018 after completing approximately half of his Chapter 13 plan. Debtor’s recent history does not evince an abuse of the bankruptcy protections. Furthermore, the instant skeletal filing does not, of itself, appear to warrant a bad faith finding.
APPEARANCES REQUIRED.
Debtor(s):
Charles Dennis West Pro Se
10:00 AM
Movant(s):
WELLS FARGO BANK, N.A. Represented By Gilbert R Yabes
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: THE GOLDEN 1 CREDIT UNION
EH
Docket 7
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Jose F. Escobar Represented By Christopher Hewitt
Movant(s):
Golden 1 Credit Union Represented By Mirco J Haag
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 9
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to § 362(d)(4) based on nine bankruptcy cases affecting the property in the past two years and multiple unauthorized transfers of a fractionalized interest in property. GRANT waiver of the Rule 4001(a)(3) stay. Pursuant to 11 U.S.C. § 362(c)(4)(A)(i), the automatic stay never went into effect in the instant case, and therefore the Court is inclined to DENY all remaining requests as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jennifer Marie Silva Pro Se
Movant(s):
U.S. Bank National Association, not Represented By
Erin M McCartney
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 14
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d)
(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request under ¶ 11 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Hortencia Gallardo Pro Se
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
MOVANT: MARIA JA JAUREGUI
EH
Docket 12
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Miguel Angel Huape Represented By Khushwant Sean Singh
Movant(s):
Maria Ja Jauregui Represented By Helen G Long
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: MARIA D VALDEZ QUINTERO
EH
Docket 6
The Court having reviewed the motion, good cause appearing, and noting the lack of any opposition, the Court is inclined to GRANT the motion, CONTINING the automatic stay as to all creditors.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Maria D Valdez Quintero Represented By Jaime A Cuevas Jr.
Movant(s):
Maria D Valdez Quintero Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JACKIE MAY ZAPATA
From: 11/8/18 EH
Docket 11
NONE LISTED -
Debtor(s):
Jackie May Zapata Represented By Todd L Turoci
Movant(s):
Jackie May Zapata Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 12/19/17, 4/24/18, 10/9/16, 10/16/18, 11/13/18
Also #24 & #25 EH
Docket 306
The Application for Compensation was amended by Applicant's reply filed on 10/30/2018 to correct errors in the calculations submitted by Applicant. The Application having been corrected, the amounts requested now appear reasonable, and the Court is inclined to GRANT the Application, allowing fees in the amount of $280,618.13 in fees and expenses, and approving payment in the amount of
$171,044.63 (to the extent funds are available). APPEARANCES REQUIRED.
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Fredman Lieberman Pearl LLP Represented By Alan W Forsley
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18, 9/25/18
Also #23 & #25 EH
Docket 83
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 6/7/16, 8/30/16, 9/14/16, 10/20/16, 10/25/16, 12/6/16, 1/10/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18, 9/25/18
Also #23 & #24 EH
Docket 7
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01225 Cambridge Medical Funding Group II, LLC v. Allied Injury Management,
HOLDING DATE
From: 11/1/16, 12/6/16, 1/31/17, 2/28/17, 3/28/17, 5/30/17, 8/29/17, 10/3/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18, 9/25/18
EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
From: 1/24/17, 3/7/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18, 9/25/18
EH
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
One Stop Multi-Specialty Medical Represented By
Maria K Pum Maria C Armenta
Nor Cal Pain Management Medical Represented By
Maria K Pum Maria C Armenta
2:00 PM
Plaintiff(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01116 Forte v. B & B Family, Incorporated
From: 7/24/18, 7/31/18, 10/9/18, 10/16/18
EH
Docket 1
NONE LISTED -
Debtor(s):
B & B Family, Incorporated Represented By Todd L Turoci Julie Philippi
Defendant(s):
B & B Family, Incorporated Represented By Todd L Turoci
Plaintiff(s):
Patricia Forte Represented By
D Edward Hays Laila Masud
2:00 PM
EH
Docket 171
On July 7, 2017, AMJ Plumbing Specialists Corp. ("Debtor") filed a Chapter 11 voluntary petition. On October 10, 2017, the Court approved the employment application of Lozano Law Center, Inc. ("Applicant") to serve as counsel to Debtor. Debtor’s first amended disclosure statement was approved on June 6, 2018, and Debtor’s first amended plan of reorganization was confirmed on August 3, 2018. No interim fee applications have been filed by Applicant.
On November 5, 2018, Applicant filed an application for compensation, requesting allowance and payment of $119,279 in fees (less a retainer of $26,000) and $988.60 in expenses. No opposition have been filed.
Pursuant to 11 U.S.C. § 330(a)(1), the court may award reasonable compensation for actual, necessary services. The court has an independent duty to review the fee application in the absence of objections. See 11 U.S.C. § 330(a)(2). The court "will not indulge in extensive labor and guesswork to justify a fee for an attorney who has not done so himself." In re Taylor, 66 B.R. 390 (Bankr. W.D. Pa. 1986).
11 U.S.C. § 330(a)(3) provides factors to be considered in determining the reasonableness of requested compensation. These factors include time spent, rates charged, necessity of the service, reasonableness of the service, expertise of attorney, and comparable market rates.
2:00 PM
First, the Court notes that the instant case was filed on July 7, 2017. Applicant’s employment application, filed August 22, 2017, explicitly requested authorization for Debtor to employ Applicant, nunc pro tunc, effective July 7, 2017. The Court’s order granting the employment application, entered October 10, 2017, reflects that employment is effective July 7, 2017. Nevertheless, Applicant has billed for substantial work completed prepetition. The billing entries submitted by Applicant reflected that Applicant billed $9,984 for work completed prior to the effective date of employment, which the Court is inclined to strike as outside the scope of the employment order entered by the Court.
Second, the Court notes that the fee application contains numerous, unambiguously lumped entries, which is prohibited by Local Rule 2016-1(a)(1)(E)
(iii) and applicable case law. For instance, one single entry, dated March 23, 2018, states the following: "Discuss available dates with court clerk. Discuss bank account information with Debtor. Prepare proposed deadlines and amend the motion, Disclosure Statement and Plan. Discussed Adequate Protection Payments with Matilda. Review Email from union re penalties and fees. Frank Alvarado," and identifies a total billed time of 8.96 hours. Such entries preclude the Court from engaging in the required review of the reasonableness and necessity of the services provided.
Third, the Court notes that it does not appear Applicant has provided any detailed description or summary of the expenses incurred and requested through the application. Pursuant to Local Rule 2016-1(a)(1)(F) and applicable case law, a summary of the expenses incurred is required for allowance.
Given that the fee application is replete with instances of lumping which would result in a disallowance of a substantial amount, if not the majority of the requested fees, the Court is inclined to DISALLOW the application in its entirety, without prejudice, and allow Applicant to file an amended fee application.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
Movant(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano David Lozano David Lozano David Lozano David Lozano
2:00 PM
From: 10/23/18 EH
Docket 0
NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
Also #32 EH
Docket 109
On July 12, 2018, LA Steel Servs., Inc. ("Debtor") filed a Chapter 11 voluntary petition. On Schedule G, Debtor listed an industrial lease agreement (the "Lease") with Pacific Spectrum One for business premises located at 1760 California Ave., Ste. 201, Corona, CA. On November 6, 2018, Debtor filed a motion to assume the Lease pursuant to 11 U.S.C. § 365. Debtor asserts that Debtor is not currently in default under the lease terms, that assumption of lease is a proper exercise of Debtor’s business judgment, and that the landlord is adequately assured of future payments pursuant to the lease terms.
11 U.S.C. § 365(a) provides that: "Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor." 11 U.S.C. § 365(c) provides limitations which are not applicable to the
2:00 PM
instant situation. 11 U.S.C. § 365(b) provides the requirements if there is an existing default in the executory contract to be assumed. Here, Debtor asserts that there is no default, and, therefore, that section is inapplicable.
11 U.S.C. § 365(d) provides for the deadline for an executory contract to be assumed or rejected. In a Chapter 11 case, 11 U.S.C. § 365(d)(2) provides that executory contracts regarding personal property or residential real property may be assumed or rejected at any time prior to confirmation of the Chapter 11 plan. 11 U.S.C. § 365(d) (4)(A)(i) provides that an unexpired lease of nonresidential real property under which the debtor is the lessee shall be deemed rejected and surrendered if not assumed within 120 days after the petition date. Debtor’s case was filed on July 12, 2018, and, as a result, the deadline to assume the Lease was November 9, 2018. Nevertheless, ostensibly due to practical considerations, the majority of case law construes this deadline as a deadline for the filing of the motion rather than the entry of an order approving assumption. See e.g., 3 COLLIER’S ON BANKRUPTCY ¶ 365.05[3][d] (16th ed. 2017) ("Recognizing these difficulties, most courts required that a trustee or debtor in possession act before the expiration of the [period], but held that court approval of a trustee or debtor in possession’s motion to assume could be granted after the expiration of the period.").
Therefore, none of the statutory exceptions being applicable, Debtor having demonstrated that the decision to assume is a sound exercise of its business judgment, notice being proper, and no opposition having been filed, the Court is inclined to GRANT the motion.
The Court is inclined to GRANT the motion.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
2:00 PM
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 8/28/18, 9/25/18 Also #31
EH
Docket 5
NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 11/13/18 EH
Docket 87
On March 27, 2018, G Hurtado Construction, Inc. ("Debtor") filed its petition for chapter 11 relief. The bankruptcy was precipitated by a wage and hour lawsuit brought by two and possibly more former employees. On April 25, 2018, the Court approved the employment application of M. Jones & Associates, P.C. ("Applicant") to serve as counsel to Debtor. Debtor’s initial disclosure statement required amendment following the Court’s allowance of late-filed claims. The First Amended DS and Plan were filed in October 2018. On October 22, 2018, the Applicant filed the instant and first interim fee application seeking allowance of
$54,450 in fees and $0 in expenses for the period of March 27, 2018, through and including October 22, 2018. No opposition has been filed.
Pursuant to 11 U.S.C. § 330(a)(1), the court may award reasonable compensation for actual, necessary services. The court has an independent duty to review the fee application in the absence of objections. See 11 U.S.C. § 330(a)(2). The court "will not indulge in extensive labor and guesswork to justify a fee for an attorney who has not done so himself." In re Taylor, 66 B.R. 390 (Bankr. W.D. Pa. 1986).
11 U.S.C. § 330(a)(3) provides factors to be considered in determining the reasonableness of requested compensation. These factors include time spent, rates charged, necessity of the service, reasonableness of the service, expertise of attorney, and comparable market rates.
2:00 PM
Applicant indicates that it is in possession of $10,600 being held in the firm’s trust account. Additionally, the Applicant indicates that the Debtor currently has
$722,251.50 in unrestricted funds with which to make payment. Here, based on the time entries narrative, and record of the case, the Court finds that the amounts sought by Applicant are reasonable. As an interim application, however, the Court will allow 80% of the requested fees, with 20% disallowed without prejudice as a hold back.
Moreover, pursuant to Local Rule 2016-1(a)(1)(J) requires a separately filed declaration from the client, or in the alternative, if the client refuses to provide such declaration, Applicant’s own declaration describing steps taken to obtain the client’s declaration. Here, the Application indicates that the client declaration would be filed in close proximity with the Application.
Based on the foregoing, the Court is inclined to GRANT the request for allowance of fees at 80% ($43,560), and the related request for order authorizing payment by the Debtor, conditioned upon the filing of a client declaration or explanation, as required under LBR 2016-1(a)(1)(J)
APPEARANCES REQUIRED.
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
EH
Docket 45
"[I]t is clear that the bankruptcy court has broad discretion over the appointment of professionals." In re Seeburg Prods. Corp., 215 B.R. 175, 178 (Bankr. N.D. Ill. 1997). A violation of the rules of professional responsibility can be sufficient reason to disqualify a proposed counsel from being employed in a case. See, e.g.. In re Universal Bldg. Prods., 486 B.R. 650, 661 (Bankr. D. Del. 2010) (collecting cases).
"An attorney retained by the trustee, or debtor in possession, who assists with the collection of the assets of the estate, must abide by the highest professional standards." In re Wilde Horse Enters., Inc., 136 B.R. 830, 840 (Bankr. C.D. Cal. 1991) "Not honesty alone, but the punctilio of an honor the most sensitive, is the standard of behavior." Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).
"[A] debtor who proposes a sale of all of its assets . . . must fully disclose to the court and creditors the relationship between the buyer and seller, as well as the circumstances under which the negotiations have taken place, any marketing efforts, and the factual basis upon which the debtor determined that the price was reasonable." In re Wilde Horse Enters., Inc., 136 B.R. at 842. In re Wilde Horse Enters., Inc.,
2:00 PM
continued on to state:
The Court finds from the evidence before it that Ms. Bernstein either (1) knew of the collusive and undisclosed relationships in this case and knowingly participated in misleading the Court and creditors; or (2) didn’t know of the collusive and undisclosed relationships in this case, and is therefore wholly incompetent because she insisted on remaining ignorant of the facts and law applicable to her case notwithstanding the numerous indicia of questionable conduct along the way. Whether Ms. Bernstein’s acts were wrongful, willfully incompetent or grossly negligent is not important to the determination here.
Under either case, the Court concludes her fees must be denied in their entirely [sic], she should not be permitted to represent debtors in possession before any bankruptcy court, and her conduct in this case must be referred to the State Bar of California for disciplinary proceedings.
Id. at 847.
In the instant case, it appears Applicant failed to act with honesty and candor in relation to the sale of substantially all of the estate’s assets. Specifically, notwithstanding Applicant’s duty to the Court, Applicant failed to disclose a material side deal which was pertinent to the terms of the sale under review, and Applicant even stated at the hearing it was not Applicant’s job to make such disclosure.
Applicant’s conduct in this case has fallen short of complying with the rules of professional conduct and has obstructed the Court’s review of the primary matter in this case, the sale of substantially all of Debtor’s assets. Given that such conduct is clearly adequate to disallow Applicant’s fees in their entirety, the Court is inclined to find that authorizing the employment of Applicant would be a frivolous exercise.
The Court is inclined to DISALLOW the application.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
(Holding Date)
From: 8/21/18, 10/23/18 Also #36
EH
Docket 78
PROCEDURAL BACKGROUND
On January 26, 2018, Markus Boyd ("Debtor") filed a Chapter 11 voluntary petition. On February 13, 2018, the Court entered an interim order approving use of cash collateral. On March 6, 2018, the Court entered orders (1) authorizing Debtor to provide adequate assurance of payment to utility service providers and; (2) approving a budget. On March 26, 2018, the Court authorized the employment of Nicholas Gebelt as counsel for Debtor. On April 26, 2018, the Court disallowed four claims of American Express (claim numbers 2 and 4-6).
On June 22, 2018, Debtor filed its disclosure statement and Chapter 11 plan. On August 7, 2018, UST filed a limited objection to Debtor’s disclosure statement.
DISCLOSURE STATEMENT
2:00 PM
In addition to the disclosure statement, the following exhibits are included: (1) "Treatment of Claims/Interests" (Exhibit A); (2) "Executory Contracts & Unexpired Leases" (Exhibit B); (3) "Cash Flow Projections" (Exhibit C); (4) "Recent Financial History" (Exhibit D); (5) "Secured Claims" (Exhibit E); (6) "General Unsecured Claims, in Class 4A or 4B" (Exhibit F); "Liquidating Analysis" (Exhibit G); "Endnotes/Continuation Sheets" (which includes a supplement) (Exhibit H). Debtor has used the Court’s optional disclosure statement form and worksheets, and, therefore, the format of the disclosure statement is adequate.
The Chapter 11 Plan’s proposed effective date is October 21, 2018. There are four classes of claims and four listed categories of unclassified claims1:
Class 1: Arrears secured by real property -- $174,971.67 claim, Debtor proposes to pay over 60 months. Debtor’s Exhibit A contains a row for arrears on the second and third deeds of trust, but does not identify any amount owing.
Class 2: Additional claims secured by real property – Debtor lists three different claims within this class. Debtor proposes to continue paying his mortgage (identified as $772,733.45)2, over 230 months and at 2% interest. Debtor proposes to cure his delinquency on HOA dues over 60 months. Debtor has included a row for, presumably, future HOA dues but no amount is listed. Nor is it clear that this class is truly unimpaired.
Class 3: Priority claims: Debtor’s plan does not list any claims in class 3
Class 4: General Unsecured – $45,151.20, Debtor proposes to pay over 60 months.
Type 1: UST fees ($650) – paid in full on effective date
Type 2: Taxes (IRS) – approximately $80k, paid over 51 months
Type 3: Taxes (FTB) –$5,651.86, paid over 51 months
2:00 PM
Type 4: Nicholas Gebelt’s fees ($30k)—paid in full on effective date
Type 5: Accountant’s fees – none listed
LEGAL ANALYSIS
A. Adequate Information
A Chapter 11 disclosure statement is required to contain "adequate information" pursuant to 11 U.S.C. § 1125(b). Section 1125(f)(2) provides that: "the court may approve a disclosure statement submitted on standard forms approved by the court or adopted under section 2075 of title 28." The Central District of California has devised a disclosure statement template, Form 3017-1.CH11.DISCLSR.STMT, which Debtor generally adopted as to format.
As to the substance of a disclosure statement, 11 U.S.C. § 1125(a)(1) defines "adequate information" as:
information of a kind, and in sufficient detail as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records, including a discussion of the potential material Federal tax consequences of the plan to the debtor, any successor to the debtor, and a hypothetical investor typical of the holders of claims or interests in the case, that would enable such a hypothetical investor of the relevant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information
2:00 PM
The type of information required varies with the circumstances. See, e.g., In re Jeppson, 66 B.R. 269, 292 (Bankr. D. Utah 1986) (listing nineteen categories of information commonly required); see also In re Malek, 35 B.R. 443, 443-44 (Bankr.
E.D. Mich. 1983) (listing minimum requirements).
While Debtor has utilized Court approved forms and has clearly delineated the treatment of the varying claims, the disclosure statement simply lacks the information necessary to evaluate Debtor’s financial situation and determine the probability of the plan’s success. First of all, as noted by UST, Debtor’s practice appears to have been not to withhold taxes on earned income. Second of all, the limited financial information provided by Debtor indicates his income fluctuates drastically. The four months of "recent financial history" (Exhibit D) including in the disclosure statement note the following monthly receipts:
1) $4,559 (February) (the corresponding monthly operating report lists receipts of
$51.89)
2) $32,591 (March)
3) $15,541 (April)
4) $35,626 (May)
Additionally, a monthly operating report for June, filed after the disclosure statement, identifies receipts in the amount of $1,801.11. The limited financial history provided supports UST’s assertion that: "Debtor’s tax liabilities are a significant risk factor given that the monthly operating reports reflect that the Debtor averages between
$18-$19,000 in monthly net income – much less than the $30,000 reported in the Disclosure Statement’s cash flow projections." Indeed, using that $18-$19,000 figure, if one assumes that the receipts are before tax and that Debtor will ultimately be unsuccessful in the pending adversary proceeding, it would appear that the proposed plan may be infeasible. In any event, the financial information provided in the disclosure statement is grossly inadequate for an evaluation of the prospects of the
2:00 PM
proposed plan. The information simply does not allow for a reasonably accurate estimation of Debtor’s income and expenses moving forward.
APPEARANCES REQUIRED.
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18, 8/21/18, 10/23/18 Also #35
EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Also #38 - #40
EH
Docket 154
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall
2:00 PM
Also #37 - #40
EH
Docket 194
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
The H. N. and Frances C. Berger Represented By
David B Golubchik
2:00 PM
$2,670.02.
Also #37 - #40
EH
Docket 126
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall
2:00 PM
Also #37 - #39
EH
Docket 171
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
11:00 AM
Adv#: 6:15-01308 Cisneros v. BWI CONSULTING, LLC et al
A. Cisneros against BWI CONSULTING, LLC, Black and White, Inc., BLACK AND WHITE BILLING COMPANY, BLACK AND WHITE INK, MEHRAN DEVELOPMENT CORPORATION. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(14 (Recovery of money/property - other))
From: 1/13/16, 3/23/16, 5/25/16, 7/27/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17, 9/13/17, 12/13/17, 2/14/18, 5/16/18, 6/11/18, 8/22/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
MEHRAN DEVELOPMENT Pro Se
11:00 AM
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Docket 31
11/28/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 292 Trustee Expenses: $ 29
The Trustee may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Steven Rodriguez Represented By Andrew Nguyen
Joint Debtor(s):
Jennifer Rodriguez Represented By Andrew Nguyen
11:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 25
11/28/2018
No opposition has been filed. Service was Proper.
The Trustee Final Report been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 566.83 Trustee Expenses: $ 153.54
The Trustee may submit on the tentative.
APPEARANCES WAIVED. Trustee to lodge an order within 7 days.
Debtor(s):
Adrian James Walker Represented By Steven A Alpert
Joint Debtor(s):
Sahtasah Evett Walker Represented By Steven A Alpert
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
11:00 AM
(Holding date)
From: 8/30/18, 9/27/18, 10/17/18 EH
Docket 20
- NONE LISTED -
Debtor(s):
Latoya Joy Armstrong Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Also #6 EH
Docket 47
10/17/2018
On April 13, 2018, Desert Ice Castle, LLC ("Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Managing Member and alleged sole owner is Anthony Liu ("Liu"). The petition indicated that the Debtor owned assets totaling $1,864.61 and had liabilities totaling $860,500. The Debtor listed two claimants in Schedule F, one claim of Andrzej Luczynski ("Luczynski") in the amount of $800,000 (as disputed) and a claim of Lui Bin in the amount of $60,500. On September 12, 2018, Luczynski filed Claim No 1-1 in the amount of $3,200,000 based on a State Court Action for "unlawful termination [of] joint venture; conversion; unlawful eviction". Luczynski has further indicated that a trial date for the State Court Action is set for November 2, 2018. The Docket reflects that a Motion to Disallow Claim No. 1 has been set for hearing on October 24, 2018.
On September 10, 2018, the Debtor filed a motion to dismiss the bankruptcy ("Motion"). A notice of Non-opposition was filed by Lui Bin on the same date.
Opposition to the Motion was filed by Luczynski and the Trustee on October 3, 2018 (the "Oppositions"). The Debtor filed an Omnibus Reply to the Oppositions on October 10, 2018 ("Reply").
11:00 AM
The Debtor seeks dismissal pursuant to § 305(a)(1). Section 305(a)(1)
provides as follows:
The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if—
(1) the interests of creditors and the debtor would be better served by such dismissal or suspension;
11 U.S.C. § 305(a)(1); In re Eastman, 188 B.R. 621, 625 (9th Cir. BAP 1995). The
courts that have construed § 305(a)(1) are in general agreement that abstention in a properly filed bankruptcy case is an extraordinary remedy, and that dismissal is appropriate under § 305(a)(1) only in the situation where the court finds that both "creditors and the debtor" would be "better served" by a dismissal. Id. (internal citations omitted). The legislative history uses the following example of such a situation:
an arrangement is being worked out by creditors and the debtor out of court, there is no prejudice to the rights of creditors in that arrangement, and an involuntary case has been commenced by a few recalcitrant creditors to provide a basis for future threats to extract full payment.
H.R.Rep. No. 95–595, 95th Cong., 1st Sess. 325 (1977); 1978 U.S.C.C.A.N. 5963,
6281.
As the statutory language and legislative history demonstrate, the test under § 305(a) is not whether dismissal would give rise to a substantial prejudice to the debtor. Nor is the test whether a balancing process favors dismissal. Rather, the test is whether both the debtor and the creditors would be "better served" by a dismissal.
In support of the Motion, the Debtor argues that (1) Luczynski will suffer no prejudice from dismissal of the case because the amended complaint filed in the State Action dismissed the Debtor from the complaint; (2) Creditor Lui Bin will be paid in full; (3) the only parties benefitting from continuation of the case are the Trustee and his professionals. Although the Debtor has seemingly been dismissed from the underlying State Court litigation, the State Action retains allegations that the Debtor is an alter ego of the named defendant, Liu. (Roman Decl. ¶ 2).
The Oppositions essentially assert that (1) Luczynski has filed a proof of claim
11:00 AM
that constitutes prima facie evidence of a claim; and (2) avoidable insider payments have been discovered that will benefit the Debtor’s creditors.
On the current record, the Court is inclined to DENY the Motion. Here, assuming (as the Court must at this juncture) that Luczynski may have an enforceable claim against the Debtor’s estate, dismissal is likely to result in plain legal prejudice to Luczynski because the Debtor and its principal/sole shareholder seek to payoff the only other unsecured creditor in full in order to force a dismissal. The Debtor’s strategy is a transparent violation of the bankruptcy code’s command that similarly situated creditors must be treated similarly. Additionally, the Court is unconvinced that the dismissal of the Debtor from the underlying State Court Action is a sufficient basis to find that the Debtor has no remaining liability to Luczynski. In fact, the Debtor’s evidence confirms that Luczynski’s complaint continues to argue that the Debtor and Liu are alter egos. For now, the Court agrees with the Trustee and Luczynski that dismissal would be premature at this point.
Based on the foregoing, the Court finds that Debtor has not met its burden of demonstrating that both the Debtor and creditors will be "better served" by dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Thomas J Eastmond
11:00 AM
From: 10/24/18 Also #5
EH
Docket 55
- NONE LISTED -
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Docket 30
- NONE LISTED -
Debtor(s):
Jesus Davila Romero Represented By Neil R Hedtke
Movant(s):
Jesus Davila Romero Represented By Neil R Hedtke
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
11:00 AM
Docket 12
On October 16, 2017, Gregory Ouma ("Debtor") filed a chapter 13 petition for relief (the "First Case"). The Debtor’s First Case was dismissed on November 30, 2017. On September 25, 2018 ("Petition Date"), filed his petition for chapter 7 relief (the "Second Case").
On November 2, 2018, the Debtor filed a Motion for Contempt ("Motion") asserting that H.D. Valley Development Corporation, H.G. Long and Leslie Born ("Respondents") violated the automatic stay by continuing legal proceedings to obtain a judgment and writ of possession on October 30, 2018. On November 13, 2018, Respondents filed their opposition to the Motion ("Opposition").
The Respondents respond that pursuant to § 362(c)(3), when a debtor had a single or joint case pending within the preceding 1-year period which was dismissed, the stay terminates on the 30th day after the filing of the later case unless a motion to extend the stay is granted. 11 U.S.C. § 362(c)(3). Here, the Debtor’s First Case was pending and dismissed within 1 year of the filing of the Second Case. Thus, § 362(c)
(3) applies. Pursuant to § 362(c)(3), the stay terminated on October 25, 2018. Per the Respondents’ declaration and evidence, the unlawful detainer trial was originally set for September 27, 2018, but was continued to October 30, 2018, due to the filing of the Second Case. The record before the Court indicates that there were no actions taken by Respondents during the 30-day period between the Petition Date and October 25, 2018. Additionally, the docket text attached to the Debtor’s motion indicates that the only action taken by Respondents during the 30-day stay period was the filing of a
11:00 AM
notice of continuance of the trial to October 30, 2018 on October 5, 2018.
Prohibited communications include those where direct or circumstantial evidence shows the creditor's actions were geared toward collection of a prepetition debt, were accompanied by coercion or harassment, or otherwise put pressure on the debtor to pay. In re Zotow, 432 B.R. 252, 258–59 (9th Cir. BAP 2010). Here, the filing of, and service of the notice of continuance are not in the nature of prohibited communications under § 362(a). Thus, the Debtor has failed to demonstrate that any action by Respondents violated the automatic stay.
Based on the foregoing, the Court is inclined to DENY the Motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Gregory O Ouma Pro Se
Movant(s):
Gregory O Ouma Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 13
On October 17, 2018, the Office of the United States Trustee ("UST") filed its Motion for Order Compelling Attorney to File Disclosure of Compensation pursuant to 11
U.S.C. § 329 ("Motion"). The Motion requested that the Law Office of William Windham ("Windham") file a Statement of Attorney Compensation. Windham filed the Statement of Attorney Compensation on November 8, 2018.
The Court is inclined to DENY the Motion as moot.
Debtor(s):
Chiu Ng Represented By
William E Windham
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
Docket 471
- NONE LISTED -
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
2:00 PM
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Movant(s):
KPMG LLP Represented By
Richard W Esterkin
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Peter M Bransten
Michael I Gottfried Aleksandra Zimonjic Monica Rieder Cynthia M Cohen Roye Zur
2:00 PM
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:15-01303 Cisneros v. AMERICAN EXPRESS
A. Cisneros against AMERICAN EXPRESS. (Charge To Estate $350). For Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 1/13/16, 3/23/16, 5/25/16, 6/29/16, 8/31/16, 11/2/16, 2/1/17, 5/3/17 9/13/17, 12/13/17, 2/14/18, 5/16/18, 6/11/18, 8/22/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
AMERICAN EXPRESS Represented By Robert S Lampl Chad V Haes
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
EH
Docket 133
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
Movant(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
2:00 PM
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
Also #14 EH
Docket 93
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Douglas J. Roger and Nicole L. Represented By Marc C Forsythe
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske
2:00 PM
Arjun Sivakumar Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
Also #13 EH
Docket 95
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Liberty Orthopedic Corporation Represented By
Misty A Perry Isaacson
Universal Orthopaedic Group Represented By
Misty A Perry Isaacson
OIC Medical Corporation Represented By
Misty A Perry Isaacson
Plaintiff(s):
Revere Financial Corporation Represented By
2:00 PM
Trustee(s):
Franklin R Fraley Jr
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:18-01141 Balderas et al v. Valderrama
EH
Docket 10
- NONE LISTED -
Debtor(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Defendant(s):
Frank Javier Valderrama Represented By Robert G Uriarte
Plaintiff(s):
Elizabeth Balderas Represented By John F Bazan
Jose Carrillo Represented By
John F Bazan
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
Also #17 EH
Docket 14
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Movant(s):
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
2:00 PM
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01105 Johnson v. Goe & Forsythe, LLP et al
From: 7/10/18, 9/12/18, 10/30/18 Also #16
EH
Docket 1
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Goe & Forsythe, LLP Pro Se
Todd A Frealy, Chapter 7 Trustee Represented By
Monica Y Kim
Plaintiff(s):
Joana Johnson Represented By Scott Talkov
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01078 Simons (TR) v. Parks et al
From: 6/5/18, 8/22/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Trending Up Represented By
Daniel King
Defendant(s):
Robert Parks Represented By
Kathleen P March
Barbara Parks Represented By Kathleen P March
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
EH
Docket 114
11/28/2018
On October 30, 2018, the Trustee filed a Motion for Order Extending Time to file Avoidance Actions under 11 USC § 546 and FRBP 9006. Service of the Motion was proper and no opposition has been filed. Good cause appearing, the Court is inclined to GRANT the request for a 6-month extension of time for Trustee to file avoidance actions.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Movant(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe Charity J Manee
2:00 PM
Adv#: 6:18-01138 Speier v. Conestoga Settlement Services, LLC et al
U.S.C. § 105; and (13) Elder Financial Abuse [Cal. Welf. & Inst. Code § 15600 et seq.] Nature of Suit: (14 (Recovery of money/property - other)) (Eastmond, Thomas)
From: 8/29/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
2:00 PM
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
Provident Trust Group, LLC Represented By Marshall J Hogan
De Leon & Washburh, P.C. Represented By Jasmin Yang David D Samani
Thomas Washburn Represented By Jasmin Yang David D Samani
Hector De Leon Represented By Jasmin Yang David D Samani
Jeff Converse Pro Se
Michael Woods Pro Se
Michael McDermott Pro Se
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
Plaintiff(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:17-01186 Gordon v. Dresser
From: 3/29/18, 11/7/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Ruth Herrera Dresser Represented By Christopher Hewitt
Defendant(s):
Ruth Dresser Represented By
Michael Jay Berger
Plaintiff(s):
Marshall Gordon Represented By Marvin H Weiss
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Adv#: 6:18-01186 Roberto v. Tyler & Bursch, LLP et al
Also #2 EH
Docket 5
APPEARANCES REQUIRED.
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Defendant(s):
Tyler & Bursch, LLP Represented By Robert H Tyler Todd L Turoci
Jennifer Bursch Represented By Robert H Tyler Todd L Turoci
11:00 AM
Movant(s):
Tyler & Bursch, LLP Represented By Robert H Tyler Todd L Turoci
Jennifer Bursch Represented By Robert H Tyler Todd L Turoci
Plaintiff(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:18-01186 Roberto v. Tyler & Bursch, LLP et al
Nature of Suit: (91 (Declaratory judgment)),(21 (Validity, priority or extent of lien or other interest in property)),(12 (Recovery of money/property - 547 preference)
Also #1 EH
Docket 1
- NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Defendant(s):
Tyler & Bursch, LLP Represented By Robert H Tyler Todd L Turoci
Jennifer Bursch Represented By Robert H Tyler Todd L Turoci
Plaintiff(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 6:18-01181 Tarhuni v. Lakeview Loan Servicing LLC et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing LLC Represented By Jonathan C Cahill
Loancare LLC Represented By Jonathan C Cahill
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 220
- NONE LISTED -
Debtor(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Movant(s):
John Alexander Jay Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 120
- NONE LISTED -
Debtor(s):
Troy Gene Thomas Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Becky L Thomas Represented By Jenny L Doling Summer M Shaw
Movant(s):
Troy Gene Thomas Represented By Jenny L Doling Summer M Shaw
Becky L Thomas Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 83
- NONE LISTED -
Debtor(s):
Maurice Frank Manceau Represented By Jenny L Doling Summer M Shaw
Movant(s):
Maurice Frank Manceau Represented By Jenny L Doling Jenny L Doling Summer M Shaw Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 118
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
Movant(s):
Ramiro J Cruz Represented By Summer M Shaw Summer M Shaw Jenny L Doling Jenny L Doling
Norma Idalia Cruz Represented By Summer M Shaw Jenny L Doling
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 121
- NONE LISTED -
Debtor(s):
Joseph Robert Byrne Represented By Jenny L Doling Summer M Shaw
Joint Debtor(s):
Hillary Allyne Byrne Represented By Jenny L Doling Summer M Shaw
Movant(s):
Joseph Robert Byrne Represented By Jenny L Doling Jenny L Doling Summer M Shaw Summer M Shaw
Hillary Allyne Byrne Represented By Jenny L Doling Summer M Shaw
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 50
- NONE LISTED -
Debtor(s):
Robert P Contreras Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Marie G Contreras Represented By Michael Smith Sundee M Teeple
Movant(s):
Robert P Contreras Represented By Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple
Marie G Contreras Represented By Michael Smith Michael Smith Sundee M Teeple Sundee M Teeple
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$425.00, Expenses: $0. Also #11
EH
Docket 117
- NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Movant(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$425.00, Expenses: $0. Also #10
EH
Docket 113
- NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Movant(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 90
- NONE LISTED -
Debtor(s):
Michelle Ann Maki Represented By Dana Travis
Movant(s):
Michelle Ann Maki Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/18/18, 11/8/18 EH
Docket 33
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Movant(s):
Jude Okwor Represented By
Javier H Castillo Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CORINTHIA A. WILLIAMS
EH
Docket 7
11/29/2018
The evidence that the tax issue which resulted in the dismissal of the Debtor’s second case is insufficient. At minimum, the Debtor should have provided a declaration of the tax preparer she hired to give the Court an opinion regarding the likelihood that the IRS would again file a claim of a similar amount, which would render the Debtor’s case infeasible.
As to service, the Order Setting Hearing on Shortened time required that a Written Notice of the Hearing AND a copy of the Court’s Order Setting the Hearing be sent to the creditors indicated. Instead, Docket No. 15 is a stand-alone proof of service which indicates that the Order and a Notice of Hearing were mailed to the foreclosing creditor. However, Docket reflects a failure by Debtor to file a Notice of Hearing indicating the date, time and place of the hearing. The stand-alone proof of service is insufficient for the Court to have certainty that a Notice of Hearing which satisfies due process requirements was mailed to the foreclosing creditor.
As such, the tentative ruling is to DENY the Motion. APPEARANCES REQUIRED.
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
11:00 AM
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/25/18 Also #16
EH
Docket 59
- NONE LISTED -
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MILESTONE FINANCIAL LLC From: 9/25/18, 10/18/18, 10/25/18
Also #15 EH
Docket 49
Service is Proper Opposition: Yes
As a preliminary note, the Court notes that Local Rule 4001-(1)(c)(4) states that: "[a] motion for relief from the automatic stay must be filed separately from, and not combined in the same document with, any other request for relief, unless otherwise ordered by the court." Therefore, the default position is that the alternative requests made by Movant, for dismissal of the case or modification of the plan, are inappropriately brought in conjunction with a motion for relief from stay. Here, the Court is inclined to not deviate from the default position, because such requests are more appropriately heard on a Chapter 13 calendar when the Chapter 13 Trustee is present. Therefore, the Court is inclined to DENY the alternative requests for dismissal of the case or modification of the plan without prejudice.
Regarding the request for relief from the automatic stay, the Court notes that Debtor is correct in asserting that the Chapter 13 plan is a conduit plan, with payments to be made to Del Toro Loan Servicing, Movant’s servicer, through the plan. While the
11:00 AM
Court notes that the docket does not reflect that a motion to dismiss for delinquency has been filed in this case, Debtor has not provided any supporting documentation indicating that the Chapter 13 plan payments are current.
Parties to discuss status of Chapter 13 plan payments and whether funds have been received by Movant and/or its loan servicer, Del Toro Loan Servicing.
APPEARANCES REQUIRED.
Debtor(s):
Fernando Coronel Represented By Raymond Perez
Joint Debtor(s):
Maria Coronel Represented By Raymond Perez
Movant(s):
Milestone Financial, LLC Represented By Harris L Cohen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 32
On April 5, 2018 ("Petition Date"), Cynthia Miller ("Debtor") filed her petition for chapter 13 relief. On April 7, 2018, Cavalry SPV I, LLC ("Claimant") filed two claims against the Debtor’s estate: Claim No. 1 for $437.39 and Claim No. 2 for
$742.11. On October 25, 2018, the Debtor filed a motion objecting to both Claims 1 and 2 ("Objection"). Service was proper and no response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the
11:00 AM
claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Debtor asserts that Claims 1 and 2 are barred by the applicable statute of limitations. Section 502(b)(1) provides that a claim is deemed allowed, unless such claim is unenforceable against the debtor and property of the debtor under applicable law. Under California law, the statute of limitations applicable to common counts is four years if the action is founded upon a contract or other writing (e.g., "book account" (¶ 3:398), "account stated" (¶ 3:400), or money lent on a note), and the statute of limitations is generally four years from the date of the last item in the account. CCP § 337(1),(2); Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas Co., 116 CA 4th 1375, 1396, FN. 9 (Cal. App. 2004).
Here, both Claim No. 1 and Claim No. 2 present documentation indicating that the last transaction date or item on the accounts occurred more than four years prior to the Petition Date. Thus, based on the record before the Court, the Debtor has pointed to facts sufficient to defeat the allegations of the claim and Claimant has made no response.
Based on the foregoing, the Court is inclined to SUSTAIN the Objection in its entirety
11:00 AM
DISALLOWING Claims 1 and 2 in their entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Cynthia Miller Represented By Richard Lynn Barrett
Movant(s):
Cynthia Miller Represented By Richard Lynn Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adam Casey Addison Represented By Nima S Vokshori Luke Jackson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Peter Najim Represented By
Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rafael Martinez Represented By Omar Zambrano
Joint Debtor(s):
Lilia Janeth Martinez Represented By Omar Zambrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Leonard Walter Frost Jr. Represented By Kristin R Lamar
Joint Debtor(s):
Joan Cheng Frost Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Patrick Lovato Represented By Justin Lynch
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
HOLDING DATE
From: 11/8/18 Also #25
EH
Docket 31
- NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Movant(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #24 EH
Docket 0
- NONE LISTED -
Debtor(s):
Donna Roberto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #27 EH
Docket 25
On August 15, 2018 ("Petition Date"), Shelley Gastelo ("Debtor") filed her petition for chapter 13 relief. Among the claims filed in the estate is Claim No. 12-1 filed by Elizon Master Participation Trust I, et al SN Servicing Corporation ("Claimant") in the amount of $257,339.12 on October 22, 2018. On October 25, 2018, the Debtor filed her Objection to Claim No. 12 ("Objection"). Claimant, in turn, filed a response to the Objection on November 13, 2018.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby
11:00 AM
giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Debtor requests that this Court disallow Claimant’s claim on the sole basis that she believes Claimant is noncompliant with FRBP 3001 in that Claimant has not indicated how arrears were calculated. However, as indicated by Claimant, in In re Campbell and In re Heath, the Ninth Circuit BAP indicated that lack of compliance with Rule 3001 is not a sufficient basis for disallowance of a claim. The Debtor has pointed to alternate sanctions provided for by Rule 3001 but has failed to establish that those sanctions are justified under the facts presented by this Objection.
11:00 AM
Based on the foregoing, the Court is inclined to OVERRULE the Objection in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Shelley Elizabeth Gastelo Represented By Marcella Lucente
Movant(s):
Shelley Elizabeth Gastelo Represented By Marcella Lucente Marcella Lucente
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #26 EH
Docket 0
- NONE LISTED -
Debtor(s):
Shelley Elizabeth Gastelo Represented By Marcella Lucente
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Nick Caropino Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Carlos Garcia Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Erika Lynn Pruitt Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Leanne Diaz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Isaias Solano Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rubin Esquivel Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gary Bryant Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elizabeth M. Laird Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Delahanty Represented By Patricia Rodriguez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rebecca Anne Hernandez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Janisha Michelle Cook Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jorge Leon Represented By
Paul Y Lee
Joint Debtor(s):
Alicia Leon Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marlene Gomez Tarula Represented By
James Geoffrey Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria Virginia Rivas Mendez Represented By Curtis R Aijala
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Henry Lopez Jr Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Louise Laster Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Chun Dae Felty Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Grace Chacon Arranaga Represented By Robert L Firth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gilbert Stanley Valencia Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mariama T Jobe Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joseph A Hamburger Represented By Paul Y Lee
Joint Debtor(s):
Kara L Hamburger Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marcus Edward Kanavalov Sr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Granados Represented By Todd L Turoci
Joint Debtor(s):
Norma Granados-Maycott Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Denise Awages Bracken Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jerome E. Geeter Represented By Laleh Ensafi
Joint Debtor(s):
Roslyn W Howell Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pablo Cornejo Represented By Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elmer Arnold Tompkins Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Chad Michael Kneip Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Heck Represented By
John M Boyko
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alberto Josue Lopez Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Veronica Garcia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Virginia Benavides Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gema Beniukoff Represented By Amanda G Billyard
Joint Debtor(s):
Ruben Sotelo Represented By
Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Karen Ann Savel Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Garcia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Frank Thomas Scott Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jackie May Zapata Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edward V. Cota Represented By Keith Q Nguyen
Joint Debtor(s):
Estela D. Cota Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Karin Olaya Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 275
- NONE LISTED -
Debtor(s):
Michael Anthony Clay Represented By Dana Travis
Joint Debtor(s):
Brenda Ann Clay Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 69
- NONE LISTED -
Debtor(s):
Carlos Vincent Valdez Represented By Gregory M Shanfeld
Joint Debtor(s):
Grace G. Valdez Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 160
- NONE LISTED -
Debtor(s):
James Lange Represented By
Michael Smith Sundee M Teeple Craig K Streed
Joint Debtor(s):
Michelle Lange Represented By Michael Smith Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 304
- NONE LISTED -
Debtor(s):
Jose N Recinos Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Patricia Recinos Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 142
- NONE LISTED -
Debtor(s):
Anthony E Turkson Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 130
- NONE LISTED -
Debtor(s):
Zulu A Ali Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 80
- NONE LISTED -
Debtor(s):
Esmeralda Caldera Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Marion Schmidt Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 70
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Dorothy Mae Simmons Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 230
- NONE LISTED -
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Patricia Daniels Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 85
- NONE LISTED -
Debtor(s):
Joseph John Vargas Represented By Dana Travis
Joint Debtor(s):
Lydia Vargas Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 100
- NONE LISTED -
Debtor(s):
Gene Ashley Heisser Jr. Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 79
- NONE LISTED -
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Richard LaFayatte Sellers Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 176
- NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Rizal Ligayo Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Louis Gutierrez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 70
- NONE LISTED -
Debtor(s):
Bryan D. Chriss Represented By Michael Smith Cynthia L Gibson Sundee M Teeple
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 41
- NONE LISTED -
Debtor(s):
Mandy Catron Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Paulette M Gonzales Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Maria Leticia Estrada Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 55
- NONE LISTED -
Debtor(s):
Brenda Barlow Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Natona Smith Represented By Natalie A Alvarado
Joint Debtor(s):
Tameiko Smith Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Jesus E. Montano Represented By Paul Y Lee
Joint Debtor(s):
Nichole Montano Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Wayne Anthony King Represented By Dana Travis
Joint Debtor(s):
Traci Ann Zweck Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Carmen Lopez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Justa Nelida Guzman Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Jose Martinez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Aurora Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Lawrence A McCoy Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
MOVANT: GREEN ROCK II, A WYOMING LIMITED LIABILITY COMPANY
EH
Docket 10
Debtor(s):
Pearl Bluitt Represented By
Kenneth D Sisco
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 49
12/4/2018
Service: Proper Opposition: Yes
The parties are to update the Court regarding any discussions regarding an APO. APPEARANCES REQUIRED.
Debtor(s):
Rodolfo Domingo Plado Represented By Dana Travis
Joint Debtor(s):
Esmenia Rivera Plado Represented By Dana Travis
Movant(s):
Wells Fargo Bank, N.A./Wells Fargo Represented By
Rosemary Allen Michelle Jones Nancy L Lee
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 31
NONE LISTED -
Debtor(s):
Carl Darvin Gempeler Represented By Nicholas M Wajda
Joint Debtor(s):
Charmaine Nina Gempeler Represented By Nicholas M Wajda
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Mark S Krause
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALLY BANK
EH
Docket 62
12/4/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jesse Norman Dofelmire Represented By Carey C Pickford
Joint Debtor(s):
Roucelle Frias Dofelmire Represented By Carey C Pickford
Movant(s):
Ally Bank Represented By
Adam N Barasch
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
EH
Docket 41
NONE LISTED -
Debtor(s):
Michael A Losoya Represented By Julie J Villalobos
Joint Debtor(s):
Patricia O Losoya Represented By Julie J Villalobos
Movant(s):
HSBC Bank USA, National Represented By Darren J Devlin
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: MIDFIRST BANK
EH
Docket 33
12/4/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶ 3 and 12.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Reginald D. Caldwell Represented By Patricia M Ashcraft
Movant(s):
MidFirst Bank Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DITECH FINANCIAL LLC
EH
Docket 14
12/04/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1) and DENIED under § 362(d)(2) based on the existence of some equity in the Property. GRANT waiver of 4001(a)(3) stay. GRANT requests under ¶¶3 and 12.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Charles Lynn Jenkins Represented By Alexander Pham
Joint Debtor(s):
Amanda Christina Marie Jenkins Represented By
Alexander Pham
Movant(s):
Ditech Financial LLC Represented By Darlene C Vigil
10:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 25
12/4/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). DENY pursuant to § 362(d)(2) for lack of cause shown. GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Cameron Hudson Represented By Stuart R Simone
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: CAB WEST, LLC
EH
Docket 7
12/4/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ruben Alfonso Rios Represented By Neil R Hedtke
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 20
12/4/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Janisha Michelle Cook Pro Se
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 9
12/04/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Allen Keith Taylor Sr. Represented By Edward G Topolski
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: DAIMLER TRUST
EH
Docket 17
NONE LISTED -
Debtor(s):
Edward V. Cota Represented By Keith Q Nguyen
Joint Debtor(s):
Estela D. Cota Represented By Keith Q Nguyen
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: REAL ESTATE BABY 12 LLC
EH
Docket 15
12/4/2018
Service is Proper Opposition: Yes
The Court is inclined to GRANT relief from the stay under §§ 362(d)(1) and (d)(2). Parties to indicate whether resolution has been reached at hearing.
APPEARANCES REQUIRED.
Debtor(s):
Terry E Crossley Represented By Christopher J Langley
Joint Debtor(s):
Janell Crossley Represented By Christopher J Langley
Movant(s):
Real Estate Baby 12 LLC Represented By
W. Derek May
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 8
12/4/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
April Behrendt Represented By Terrence Fantauzzi
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
From: 10/30/18 Also #15
EH
Docket 416
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Commercial Credit Group, Inc. Represented By Andrew K Alper Michael J Gomez
2:00 PM
From: 1/9/18, 4/10/18, 7/10/18, 7/24/18, 8/14/18, 10/30/18
Also #14 EH
Docket 48
NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
Also #17 EH
Docket 52
BACKGROUND
On August 25, 2017, Rick’s Patio, Inc. ("Debtor") filed its petition for chapter 11 relief. The Debtor is a California corporation, engaged in the business of selling new and used hot tubs (spas) and related supplies. The Debtor has designated itself as a small business under 11 U.S.C. § 101(51C). The hearing on confirmation is set for December 4, 2018. In connection with Debtor’s chapter 11 plan of reorganization ("Plan"), the Debtor obtained an order to value its assets. On October 5, 2018, the Debtor filed its valuation motion seeking to value the Debtor’s assets at $701,705.48 as of the petition date. The proposed valuation enables the Debtor to treat Wells Fargo and First Home Bank as the holders of secured claims and to avoid the junior liens of Fast Advanced Funding, LLC, Complete Business Solutions, Inc., Broadway Advance, LLC, Par Funding, Yellowstone Capital West LLC, and Cap Call LLC (collectively, the "Junior Liens").
DISCUSSION
The debtor carries the burden of proving that a Chapter 11 plan complies with the statutory requirements for confirmation under §§ 1129(a) & (b). In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). The debtor must show that the plan is confirmable by a preponderance of the evidence. See id. at 654; see also In re Monarch Beach Venture, Ltd.,166 B.R. 428 (C.D.Cal.1993).
Ballot Results:
The Debtors timely transmitted the Plan and Disclosure Statement to all known Persons who hold Claims and Interests that are impaired under the Plan and who are therefore entitled to vote on the Plan. The Debtors received (4) four ballots. The votes
2:00 PM
were tallied as follows:
Class 1: Wells Fargo (unimpaired) Deemed to accept
Class 2 First Home Bank (unimpaired) Deemed to accept
Class 3 General Unsecured Claims (impaired)
1 ballot in favor, 100% of voting claims accepted. Thus, Class 3 has voted in favor
Class 4: Insider Claims (impaired)
1 ballot in favor, 100% of voting claims accepted. Thus, Class 4 has voted in favor
Class 5 Equity: not voting.
A court can confirm a plan without resort to cram down if all impaired classes accept the plan. Here, all impaired classes have accepted the plan. Thus, cramdown is not required.
Confirmation Requirements under 11 U.S.C. §1129(a)
The Plan addresses the requirements of Bankruptcy Code 1129(a) as follows:
11 U.S.C. § 1129(a)(1): The Plan complies with all of the applicable provisions of the Bankruptcy Code, including sections 1122 and 1123.
11 U.S.C. § 1129(a)(2): The Debtor has complied with all of the Bankruptcy Code's applicable provisions.
11 U.S.C. § 1129(a)(3): Good faith in proposing a plan of reorganization is assessed by the bankruptcy judge and viewed under the totality of the circumstances. In re Jorgensen, 66 B.R. 104, 108-109 (9th Cir. BAP 1986). Good faith requires that a plan will achieve a result consistent with the objectives and purposes of the Code. Jorgensen, 66 B.R. at 109. It also requires a fundamental fairness in dealing with one's creditors. Id. The bankruptcy judge is in the best position to assess the good faith of the parties. Id. Here, having received no objections to confirmation, the Court finds that the Plan has been proposed in good faith pursuant to FRBP 3020(b)(2).
11 U.S.C. § 1129(a)(4): Debtor asserts that his Counsel will file a Fee Application shortly following confirmation of the Plan. This satisfies the Bankruptcy Code's requirement that payments for services or for costs and expenses in or in connection
2:00 PM
with a case, or in connection with a plan and incident to a case, must be approved by, or subject to the approval of, the Court as reasonable.
11 U.S.C. § 1129(a)(5): The Plan addresses the continued management of the Debtor by its principals. The management was fully disclosed and there has been no objection to the continuing management by the principals. The Court finds the Plan meets the requirements of this provision.
11 U.S.C. § 1129(a)(6): does not apply to the instant case.
11 U.S.C. § 1129(a)(7): Each Person who holds a Claim or Interest in a Class that is impaired under the Plan either: (a) has accepted the Plan; or (b) will receive or retain under the Plan property of a value, as of the Effective Date, that is not less than that Person would receive or retain if the Debtor were liquidated under chapter 7 of the Bankruptcy Code. The Debtor has demonstrated that all impaired interest holders have accepted the plan.
11 U.S.C. § 1129(a)(8): Section 1129(a)(8) requires unanimity of all classes to consensually confirm a plan. That is, each impaired class must have affirmatively accepted the plan. The Ballot Tally above indicates that this requirement is satisfied because all impaired classes have affirmatively accepted the plan.
11 U.S.C. § 1129(a)(9): Section 1129(a)(9)(A) requires that holders of administrative claims and gap claims be paid "cash equal to the allowed amount of such claim" on the "effective date of the plan," unless the holder of a particular claim agrees to different treatment. Here, the Plan provides for the payment of outstanding administrative fees upon approval of fees and on the effective date. The priority tax claimants will be paid in full with interest within 5 years of the Petition Date and no distributions will be made to equity holders until all Plan payments are paid in full. This requirement is satisfied.
11 U.S.C. § 1129(a)(10): This provision requires at least one class of claims that is impaired accept the plan. This requirement is satisfied.
11 U.S.C. § 1129(a)(11): Plan confirmation is not likely to be followed by either the liquidation or the further financial reorganization of the Reorganized Debtor or
2:00 PM
any successor to the Reorganized Debtor. The Debtor’s projections and the MORs in the Court’s record reflect that the projections of the Debtor appear accurate.
Additionally, the Debtor’s CFO has asserted that the Debtor will benefit from accumulated Net Operating Losses that will enable it to lower its tax liability for the coming years. The evidence provided, in addition to the Debtor’s anecdotal evidence that the market for hot tubs is generally improving, suffices for purposes of confirmation today, particularly where the Debtor’s creditors have accepted the Plan. As such, the Court finds this requirement is satisfied.
11 U.S.C. § 1129(a)(12): The treatment of Administrative Claims under the Plan is for the UST to be paid by the Effective Date. This requirement is satisfied.
11 U.S.C. § 1129(a)(13): does not apply to the instant case.
11 U.S.C. § 1129(a)(14): does not apply to the instant case.
11 U.S.C. § 1129(a)(15): does not apply to the instant case.
11 U.S.C. § 1129(a)(16): This provision is satisfied for the reasons set forth in the Confirmation Brief.
TENTATIVE RULING
As set forth above, the Plan complies with the requirements of Section 1129, except that LBR 3018-1(a) requires the Debtor to make available the original ballots for inspection and review by the court. The original ballots were not attached to the ballot summary. Thus, in order to verify that the ballots were timely filed and signed, the Court is inclined to CONFIRM the Plan conditioned on provision of the ballots for the Court’s review, which Debtor may file prior to the hearing.
APPEARANCES REQUIRED.
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
2:00 PM
From: 4/24/18, 7/31/18, 9/25/18 Also #16
EH
Docket 8
NONE LISTED -
Debtor(s):
Rick's Patio Inc Represented By
Robert B Rosenstein
2:00 PM
Also #19 & #20 EH
Docket 37
On July 23, 2018, Richard Garavito ("Debtor") filed a Chapter 11 voluntary petition. Debtor previously filed a Chapter 13 case on April 17, 2018, which was dismissed on July 19, 2018.
On August 29, 2018, the Taylor Family Trust of June 16, 2004 ("Creditor"), the primary creditor in the instant case, filed a motion to confirm that the automatic stay terminated pursuant to 11 U.S.C. § 362(c)(3)(A). On September 7, 2018, Debtor filed a motion to continue/impose the automatic stay. Because Debtor has not offered a cognizable legal argument as to why the automatic stay has not terminated, or why Debtor can obtain a continuation of the automatic stay after the statutory deadline, the Court has posted tentative rulings indicating that it intends to grant Creditor’s motion and deny Debtor’s motion.
On September 11, 2018, Debtor filed a motion to dismiss the case and an application
2:00 PM
shortening time. On September 13, 2018, the Court approved the application shortening time, and set a hearing for September 25, 2018.
11 U.S.C. § 1112(b)(1) states:
Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(4) provides a non-exclusive list of sixteen examples of cause – most of which are more appropriately considered when the moving party is an entity other than the debtor.
Here, Debtor’s motion is unclear, at best. The entire argument why the case should be dismissed is reproduced, verbatim, as follows:
In the present case, since the motion to impose and/or continue the stay was not timely filed, the stay will no longer be in effect with the pending motion to terminate the stay filed by secured creditor Taylor Family Trust.
The Debtor should not be penalized due to counsel’s inadvertent calendaring
2:00 PM
error of the 30 days rule of filing a motion to impose and/or continue the stay. However, an argument can be made that under the majority approach a motion to impose or continue the stay shall be filed as to the Debtor individually and not as to the property of the estate. Here, the Subject Property is property of the estate and the automatic stay should be in effect as to the Subject Property.
However, due to circumstances surrounding the possible termination of the stay, the Debtor requests dismissal of this case as there is no purpose if the stay is not in effect as to the Subject Property.
[Dkt. No. 37, pg. 5]. In summary, Debtor acknowledges that the stay has statutorily terminated and the deadline to continue the automatic stay has lapsed, but then argues that such stay termination is with regards to the Debtor only, not property of the estate. Despite the argument, the Debtor then asserts that due to "circumstances" the Debtor requests dismissal because there is "no purpose" if the stay has also terminated as to property of the estate.
There are multiple issues with the above line of argument. First, Debtor does not appear to have raised any coherent cause for dismissal – the only argument made in favor of dismissal, that the "Subject Property" is not protected by the automatic stay, (and thus this Chapter 11 case cannot be successful) is also explicitly rejected by Debtor. Second, § 1112(b) requires the Court to consider whether dismissal or conversion to Chapter 7 is in the best interests of creditors and the estate. Here, Debtor’s schedules filed in the instant case indicate that all creditors would likely be paid in full if this case was converted to Chapter 7. Therefore, pursuant to the analysis required by § 1112(b), it is unclear why this case would be dismissed rather than converted to Chapter 7.
Finally, the Court acknowledges that, in a reply relating to its motion to confirm that the automatic stay has terminated, Creditor has requested that, if the case is dismissed, Debtor be restricted from re-filing by a bar. While raising this argument in a reply relating to a different motion is procedurally improper, the Court need not address the request at the current time given the issues above.
2:00 PM
Debtor and Creditor to argue: (1) whether there is cause for dismissal; (2) whether the automatic stay is in effect as to the Subject Property; and (3) whether dismissal or conversion to Chapter 7 would be in the best interests of creditors.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
Also #18 & #20 EH
Docket 33
NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
From: 8/21/18, 10/16/18 Also #18 & #19
EH
Docket 7
NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
Docket 189
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Abram Feuerstein esq
2:00 PM
EH
Docket 34
On September 5, 2018 ("Petition Date"), Antoine Babai ("Debtor") filed his petition for chapter 11 relief. The Debtor’s schedules reflect that he owns valuable real and personal property, including but not limited to a single family home located at 71100 Aeirie Road in Palm Desert, CA which may yield equity to pay creditors. On October 31, 2018, the Office of the United States Trustee ("UST") filed its Motion to Dismiss or Convert the Debtor’s case ("Motion"). Service was proper and no opposition has been filed.
The basis for the Motion is the assertion of the UST that the Debtor has failed to comply with his chapter 11 duties. Specifically, the Debtor submitted only a partial 7-day package, the Debtor failed to provide financial statements, failed to provide a declaration confirming that all pre-petition bank accounts have been closed, and a copy of a voided check from the debtor-in-possession bank account. Additionally, the Debtor has failed to submit additional information requested by the UST at the September 27, 2018, debtor interview.
DISCUSSION
2:00 PM
Section 1112(b)(1) provides:
Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
Section 1112(b)(4) sets forth a nonexhaustive list of what constitutes "cause" to convert or dismiss a case under § 1112(b)(1). In re Consol. Pioneer Mortg. Entities, 248 B.R. 368, 375 (9th Cir. BAP 2000), aff'd, 264 F.3d 803 (9th Cir. 2001). "The
movant bears the burden of establishing by preponderance of the evidence that cause exists." Sullivan v. Harnisch (In re Sullivan), 522 B.R. 604, 614 (9th Cir. BAP 2014) (citing StellarOne Bank v. Lakewatch, LLC (In re Park), 436 B.R. 811, 815 (Bankr.W.D.Va.2010)).
If the bankruptcy court finds that cause exists to grant relief under § 1112(b) (1), it must then: "(1) decide whether dismissal, conversion, or the appointment of a trustee or examiner is in the best interest of creditors and the estate; and (2) identify whether there are unusual circumstances that establish that dismissal or conversion is not in the best interest of creditors and the estate." In re Sullivan, 522 B.R. at 612 (citing § 1112(b)(1), (b)(2), and Shulkin Hutton, Inc., P.S. v. Treiger (In re Owens), 552 F.3d 958, 961 (9th Cir.2009)). In choosing between dismissal or conversion, a bankruptcy court must consider the interests of all creditors. Id. (citing In re Owens, 552 F.3d at 961). "If cause is established, the decision whether to convert or dismiss the case falls within the sound discretion of the court." Id. (citing Mitan v. Duval (In re Mitan), 573 F.3d 237, 247 (6th Cir .2009) and Nelson v. Meyer (In re Nelson), 343 B.R. 671, 675 (9th Cir. BAP2006)).
The basis for the Motion is the assertion of the UST that the Debtor has failed to comply with his chapter 11 duties. Specifically, the Debtor submitted only a partial
2:00 PM
7-day package, the Debtor failed to provide financial statements, failed to provide a declaration confirming that all pre-petition bank accounts have been closed, and a copy of a voided check from the debtor-in-possession bank account. Additionally, the Debtor has failed to submit additional information requested by the UST at the September 27, 2018, debtor interview. The UST’s Motion is amply supported by the attached declaration and evidence and the Court has expressed concerns with the Debtor’s case in the multiple case management conferences and hearings, on the record. Finally, the Court notes that the Debtor has failed to oppose the Motion and deems its nonopposition as consent to the granting of the relief requested pursuant to LBR 9013-1(h).
For the above reasons, the Court finds that cause is established to dismiss or convert the case. As to the choice between dismissal or conversion, the UST has pointed out and the Debtor’s schedules confirm that the Debtor likely has nonexempt assets that may be liquidated for the benefit of creditors. For these reasons, the Court finds that conversion is the appropriate remedy.
TENTATIVE RULING
Based on the foregoing, the Court is inclined to GRANT the Motion and CONVERT the Debtor’s case to a case under chapter 7.
APPEARANCES REQUIRED.
Debtor(s):
Antoine Hossein Babai Represented By Christopher Hewitt
Movant(s):
United States Trustee (RS) Represented By
2:00 PM
Everett L Green Abram Feuerstein esq
2:00 PM
From: 10/2/18, 10/30/18 Also #22
EH
Docket 11
NONE LISTED -
Debtor(s):
Antoine Hossein Babai Represented By Christopher Hewitt
2:00 PM
$164280.00, Expenses: $7207.77. (Turoci, Todd)
PUT AT END OF CALENDAR
From: 10/16/18, 10/30/18 Also #14 & #15
EH
Docket 414
12/04/2018
Given the current stage of the chapter 11 proceeding, and finding that action by the Debtor to conclude the case remains outstanding, the Court is inclined to CONTINUE the instant fee application for a short time period to permit the Debtor an opporutnity to file its request for dismissal and/or to otherwise outline a plan for concluding the case.
APPEARANCES REQUIRED.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
3:00 PM
EH
Docket 119
NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
11:00 AM
Docket 41
Debtor(s):
Scott Leon Bosco Represented By Richard H Travis Dana Travis
Joint Debtor(s):
Karen Lee Bosco Represented By Richard H Travis Dana Travis
Trustee(s):
Robert Whitmore (TR) Represented By Justin Witkin
11:00 AM
From: 10/24/18 Also #3
EH
Docket 45
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
From: 10/24/18 Also #2
EH
Docket 46
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
Adv#: 6:16-01128 Frealy v. Trotochau et al
Docket 53
Debtor(s):
M. A. Tabor Represented By
Judith Runyon
Defendant(s):
Robin Sherrie Trotochau Pro Se
Pacific Mortgage Exchange, Inc. Represented By
Leib M Lerner
Movant(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Plaintiff(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman Lindsey L Smith
11:00 AM
Docket 60
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Movant(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
11:00 AM
EH
Docket 53
Debtor(s):
Charlie W Parker Represented By David J Workman
Movant(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
Trustee(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
11:00 AM
Docket 24
Debtor(s):
Julie Lynn Salazar Represented By Jenny L Doling
Movant(s):
Karl T Anderson (TR) Represented By Richard A Marshack
Trustee(s):
Karl T Anderson (TR) Represented By Richard A Marshack
11:00 AM
EH
Docket 14
Debtor(s):
Rob Johannes Devocht Represented By Gilbert A Diaz
Movant(s):
Rob Johannes Devocht Represented By Gilbert A Diaz Gilbert A Diaz
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
CASE DISMISSED 10/29/18
EH
Docket 16
Debtor(s):
Timothy John Hill Represented By Marc E Grossman
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:09-01235 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
David Loughnot Jonathan A Loeb Jeffrey Rosenfeld
DOES 1 through 100, inclusive Pro Se
2:00 PM
Plaintiff(s):
RICHARD K. DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
01/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By
2:00 PM
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Peter M Bransten
Michael I Gottfried Aleksandra Zimonjic Monica Rieder Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By
2:00 PM
Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01329 DIAMOND v. Empire Partners, Inc., a California Corporation et
(Defendant - Empire Partners, Inc) HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb Jeffrey Rosenfeld
James P Previti Represented By Jonathan A Loeb
2:00 PM
Jeffrey Rosenfeld
Previti Realty Fund, L.P. Represented By Jonathan A Loeb Jeffrey Rosenfeld
The James Previti Family Trust Represented By Jonathan A Loeb Jeffrey Rosenfeld
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams
2:00 PM
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
U.S.C. §523(a)(6) and COUNTERCLAIM of Shatara Adrienne Thompson for Defamation, Counterclaim by Robert Lee Thompson Jr, Shatara Adrienne Thompson against Beatriz M Gutierrez
From: 8/2/18, 8/29/18 Also #14
EH
Docket 19
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
Plaintiff(s):
Beatriz M Gutierrez Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
From: 5/3/18, 8/2/18, 8/29/18 Also #13
EH
Docket 1
Debtor(s):
Robert Lee Thompson Jr. Represented By Nicholas M Wajda
Defendant(s):
Robert Lee Thompson Jr Represented By Robert S Lampl
Shatara Adrienne Thompson Represented By Robert S Lampl
Joint Debtor(s):
Shatara Adrienne Thompson Represented By Nicholas M Wajda
Plaintiff(s):
Beatriz M Gutierrez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01147 Lloyd v. Pound
Also #16 EH
Docket 6
Debtor(s):
Paul Pound Represented By
Todd L Turoci
Defendant(s):
Paul M Pound Represented By Todd L Turoci
Movant(s):
April Lloyd Represented By
Chane Buck
Plaintiff(s):
April Lloyd Represented By
Chane Buck
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01147 Lloyd v. Pound
From: 9/5/18, 11/14/18 Also #15
EH
Docket 1
Debtor(s):
Paul Pound Represented By
Todd L Turoci
Defendant(s):
Paul M Pound Represented By Todd L Turoci
Plaintiff(s):
April Lloyd Represented By
Chane Buck
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
Docket 58
The Court having reviewed the motion, good cause appearing, and noting the absence of any opposition, the Court is inclined to GRANT the motion, AVOIDING the lien of HSBC Mortgage Services upon receipt of a Chapter 13 discharge.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Sandra Maria Escalante Represented By Leon D Bayer
Movant(s):
Sandra Maria Escalante Represented By Leon D Bayer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 65
- NONE LISTED -
Debtor(s):
Sean Kirkpatrick Represented By Javier H Castillo
Movant(s):
Sean Kirkpatrick Represented By Javier H Castillo Javier H Castillo Javier H Castillo
Trustee(s):
Rod (MJ) Danielson (TR) Pro Se
11:00 AM
EH
Docket 4
- NONE LISTED -
Debtor(s):
Elmer Arnold Tompkins Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 2
- NONE LISTED -
Debtor(s):
Nick Caropino Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Cameron Hudson Represented By Stuart R Simone
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 10/23/18
EH
Docket 12
On October 5, 2018, Marcus Kanavalov ("Debtor") filed a skeletal Chapter 13 voluntary petition. Debtor had previously filed three bankruptcies. The first, a Chapter 7 in February 2002, resulted in Debtor received a discharge. The second, a Chapter 7 in June 2017, resulted in the discharge being withheld for failure to file the certificate of completion for the required course in personal finance management. The third, a Chapter 13 filed in November 2017, was dismissed at the confirmation hearing, with a 180-day bar to refiling. In the instant case, Debtor failed to disclose any of his prior cases.
On October 23, 2018, Debtor’s case was dismissed for failure to file case commencement documents. Later that day, UST filed a motion to dismiss the case for abuse, requesting a refiling bar of one year. The Court’s form dismissal order explicitly provides for the retention of jurisdiction relating to "any bar against being a debtor in bankruptcy."
11:00 AM
The court is empowered to impose a refiling bar under 11 U.S.C. § 349(a). As COLLIER notes, courts’ analysis of this section is somewhat confused due to confounding "dismissal with prejudice" with "dismissal with injunction against future filings." COLLIER ON BANKRUPTCY ¶ 349.02[3]; compare In re Garcia, 479 B.R. 488 (Bankr. N.D. Ind. 2012) (denying motion for dismissal with prejudice, but imposing three-year refiling bar) with In re Craighead, 377 B.R. 648 (Bankr. N.D. Cal. 2007) (appearing to equate dismissal with prejudice with an injunction against refiling).
There is also a circuit split concerning whether an injunction on refiling for more than 180 days is allowed under the Bankruptcy Code. Compare In re Frieouf, 938 F.2d 1099 (10th Cir. 1991) (180 days is maximum allowed length of refiling injunction) with Casse v. Key Bank Nat. Ass’n, 198 F.3d 327 (2nd Cir. 1999) (injunction against filing for more than 180 days permissible). 11 U.S.C. § 349(a) reads:
Unless, the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
The disagreement revolves around whether the qualifier "Unless, the court, for cause, orders otherwise" modifies the content after the semi-colon. In re Leavitt noted this disagreement, but since the court was dealing with a dismissal with prejudice, rather than an injunction against refiling, it did not resolve the issue. 209 B.R. 935, 942 (9th Cir. B.A.P. 1997). Within the Ninth Circuit, it appears the trend is to adopt the reasoning of the Second Circuit and allow injunctions for more than 180 days, and the Court agrees with that reading of the statute. See e.g. In re Velasques, 2012 WL 8255582 at *3 (Bankr. E.D. Cal. 2012).
Here, the instant bankruptcy is Debtor’s third filing in the previous eighteen months in which Debtor failed to comply with the basic duties imposed upon an individual filing bankruptcy. Furthermore, Debtor failed to disclose his previous filings in the voluntary petition, which is signed under penalty of perjury. For this reasons, the
11:00 AM
Court is inclined to find the requested one-year refiling bar to be appropriate in the circumstances presented.
Moreover, Debtor’s failure to oppose is deemed consent to the relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion, imposing a re-filing bar of one year.
APPEARANCES REQUIRED.
Debtor(s):
Marcus Edward Kanavalov Sr Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 10/15/18
EH
Docket 18
On September 26, 2018, Michelle Delahanty ("Debtor") filed a Chapter 13 voluntary petition. On October 15, 2018, the case was dismissed for failure to file case commencement documents.
On October 31, 2018, UST filed a motion for an order compelling attorney to file disclosure of compensation pursuant to 11 U.S.C. § 329. On November 13, 2018, Debtor’s attorney, Patricia Rodriguez ("Counsel"), filed her disclosure of compensation. Counsel also filed an opposition to UST’s motion, stating that the filing of her disclosure of compensation rendered the motion moot.
11 U.S.C. § 329(a) states:
11:00 AM
Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
FED. R. BANKR. P. Rule 2016(b) provides further details regarding the requirements imposed by § 329. Here, Debtor’s counsel has failed to file the required disclosure of compensation. The Court has authority to enter an order directing the disclosure of such compensation, and will routinely direct Debtor’s counsel to file the required disclosure. See, e.g., In re Shuma, 124 B.R. 668, 677 (Bankr. W.D. Pa. 1991).
Here, Counsel has filed the required disclosure of compensation. The Court will retain jurisdiction over any matter relating to § 329 to allow UST to review the filed disclosure of compensation.
The Court is inclined to DENY the motion as MOOT and retain jurisdiction over any matter related to § 329.
APPEARANCES REQUIRED.
Debtor(s):
Michelle Delahanty Represented By
11:00 AM
Movant(s):
Patricia Rodriguez
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 7/25/18
From: 10/25/18 Also #
EH
Docket 187
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
6:17-ap-01187 MH, which is a Conflict of Interest; (3) Request for an Accounting and Claim Numbers on any Unsecured Debts Rule 71 in Adversary Proceeding Case No 6:17-ap-01187 MH and Chapter 13 Case No 6:16-bk-16720 MH; (4) Memorandum of Points and Authorities; (5) Declaration of Luevina Henry
From: 10/25/18 Also #10
EH
Docket 110
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
11:00 AM
Movant(s):
Luevina Henry Pro Se
Plaintiff(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
From: 11/16/17, 11/1/18 Also #9
EH
Docket 1
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Plaintiff(s):
Luevina Henry Pro Se
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 109
- NONE LISTED -
Debtor(s):
Agnes Smith Represented By
James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 80
- NONE LISTED -
Debtor(s):
Gracey Hunter Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Natona Smith Represented By Natalie A Alvarado
Joint Debtor(s):
Tameiko Smith Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Gilberto Linares Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Alejandro Guillen Represented By Neil R Hedtke
Joint Debtor(s):
Karla Guillen Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Joint Debtor(s):
Anabely E Vargas Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:16-01211 Olivares v. Dason et al
EH
Docket 1
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
9:30 AM
Adv#: 6:16-01211 Olivares v. Dason et al
From: 12/10/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Defendant(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Plaintiff(s):
Juddy Olivares Represented By Lazaro E Fernandez Robert P Goe Charity J Manee
9:30 AM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
EH
Docket 41
No opposition has been filed. Service was Proper.
11 U.S.C. § 326(a) states:
In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed 25 percent on the first
$5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of
$1,000,000, and reasonable compensation not to exceed 3 percent of any moneys in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
(emphasis added).
Trustee is basing his requested compensation in this case on $185,000 in "receipts," but that amount includes $72,908.11 paid to Aylstock, Witkin, Kreis & Overholtz, PLLC which does not appear properly categorized as a receipt because these moneys were not, at any time, held or administered by Trustee, let alone received by Trustee, or disbursed by Trustee. Specifically, paragraph 8 of the motion to approve settlement [Dkt. No. 2] indicates that the costs and expenses of certain status litigation were to be paid directly by the settlement fund trustee, and only the remaining funds would
11:00 AM
actually be received by the Chapter 7 Trustee. To wit:
Subject to the terms of the settlement being satisfied, the balance of the remaining settlement proceeds, after the Settlement Fund Trustee pays and/or withholds the necessary expenses, fees, costs, holdbacks, and deductions from the Gross Settlement Amount, anticipated to be in the amount of $97,897.75 (the "Remaining Proceeds") shall be disbursed from the Settlement Fund Trustee to the Trustee.
Not only are the requested fees simply incompatible with the plain language of the statute, which calculates fees based on moneys disbursed or turned over by the trustee, the fees cannot be reasonably justified on policy grounds. In this case, the state court counsel incurred significant legal fees litigating a state court matter while the instant bankruptcy was closed. The state court counsel’s work on this matter was, in no matter whatsoever, related to the administration of the bankruptcy estate, and Trustee did not participate in, direct, or even have an awareness of the fees incurred. Case law notes that important distinction:
The reported decisions construing section 326(a) have recognized a distinction between funds that are constructively received and funds that are actually received. These cases stand for the proposition that a commission can only be calculated upon the funds actually received by the trustee. In this particular case, the trustee never received any settlement proceeds that were paid directly to the debtor’s personal injury counsel in fees and expenses or to the worker’s compensation carrier.
In re Guido, 237 B.R. 562, 564-65 (Bankr. E.D.N.Y. 1999) (citations omitted); see also Kandel v. Alexander Leasing Corp., 107 B.R. 548 (N.D. Ohio 1988) (proceeds of settlement were not "money disbursed" where the trustee cannot point to any time at which the moneys actually passed through his hands); In re New England Fish Co., 34
B.R. 899, 902 (Bankr. W.D. Wash. 1983) ("[I]n view of the majority of the cases under prior law and the plain and unambiguous wording of section 326(a), this Court concludes that the trustee’s compensation must be based on actual monies disbursed
11:00 AM
to parties in interest, and not on assets or settlements which can be construed as a constructive disbursement.").
In light of the foregoing, the Court is inclined to reduce the basis upon which Trustee’s statutory fee is calculated, eliminating those amounts which were at no time administered, held, received, or disbursed by Trustee. The remaining cognizable disbursements appear to be a bank service fee of $117.34, Trustee’s expenses in the amount of $778.22, and payments to creditors in the amount of $4,027.61, for an aggregate amount of $4,923.17. Therefore, the Court is inclined to approve Trustee’s fees in the reduced amount of $1,230.79. The Court has reviewed the itemized expenses filed by Trustee, and finding them reasonable, the Court is inclined to approve the expenses in the amount of $778.22
APPEARANCES REQUIRED. If Applicant submits on the tentative, Applicant’s appearance is waived.
Debtor(s):
Scott Leon Bosco Represented By Richard H Travis Dana Travis
Joint Debtor(s):
Karen Lee Bosco Represented By Richard H Travis Dana Travis
Trustee(s):
Robert Whitmore (TR) Represented By Justin Witkin
11:00 AM
Adv#: 6:16-01128 Frealy v. Trotochau et al
EH
Docket 53
- NONE LISTED -
Debtor(s):
M. A. Tabor Represented By
Judith Runyon
Defendant(s):
Robin Sherrie Trotochau Pro Se
Pacific Mortgage Exchange, Inc. Represented By
Leib M Lerner
Movant(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Plaintiff(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Trustee(s):
Todd A. Frealy (TR) Represented By
11:00 AM
Anthony A Friedman Lindsey L Smith
11:00 AM
EH
Docket 60
On September 15, 2017, Cleon Sonnenfeld ("Creditor") filed a Chapter 7 involuntary petition against Joshua Richardson ("Debtor"). On November 8, 2017, an order for relief was entered pursuant to stipulation between Creditor and Debtor. That same day, the Court entered an order approving a stipulation which avoided a deed of trust recorded on June 20, 2017, against Debtor’s residence, in favor of HLE Law Group.
On February 6, 2018, Creditor removed certain state court litigation to bankruptcy court. The state court litigation contained causes of action for: (1) breach of contract;
fraud; (3) unjust enrichment; (4) constructive trust; and (5) declaratory relief. On June 29, 2018, Creditor filed a complaint to determine dischargeability and to deny Debtor a discharge.
On November 8, 2018, Trustee filed a motion to approve compromise. No opposition to the motion has been filed.
11:00 AM
The dispute between Creditor and Debtor relates to a loan made by Creditor to Debtor in 2012 for the total amount of $225,000. According to the instant motion, the purpose of the loan was for Debtor to purchase certain real property located in Moreno Valley, California (the "Property"). Creditor asserts that Debtor breached the loan agreement by failing to provide Creditor with a deed of trust, and that, as a result, the Property is subject to a constructive trust in favor of Creditor. The compromise motion also deals with potential avoidance actions against Gabriela Diaz.
The compromise under consideration contains the following components. First, Creditor shall obtain a stipulated judgment in the removed action, adjudicating that the Property is subject to a constructive trust and that Creditor is entitled to a judgment in the amount of $318,778.12. Second, Trustee shall sell the Property. The first $303,000 of the sale proceeds would be payable to Creditor1, while any amount exceeding $303,000 would be divided so that the bankruptcy estate receives 30% and Creditor receives 70%.2 Third, Trustee would assign the potential avoidance actions against Gabriela Diaz to Creditor, with any net recoveries to be distributed 30% to the bankruptcy estate and 70% to Creditor. The compromise motion also contemplates that Creditor will object to Debtor’s homestead exemption.
FED. R. BANKR. P. Rule 9019 provides that:
On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.
The Ninth Circuit Court of Appeals have previously outlined the factors to be considered in approving a compromise pursuant to Rule 9019: (1) the probability of success in the litigation; (2) the difficulties to be encountered in the matter of
11:00 AM
collection; (3) the complexity, expense, inconvenience and delay of litigation; and (4) the interest of creditors with deference to their reasonable. See In re A&C Props., 784 F.2d 1377, 1381 (9th Cir. 1986). The listed factors assist the Court in determining "the fairness, reasonableness and adequacy of a proposed settlement agreement." Id.
There are a variety of material details which are not adequately addressed in the compromise motion under consideration, hindering the Court’s review of the fairness and reasonableness of the compromise These issues are enumerated below:
While the motion does not provide the relevant information, the Court takes judicial notice of Schedule A [Dkt. No. 19] and Schedule C [Dkt. No. 21]; these schedules indicate that Debtor identified the Property as having a fair market value of $303,000 and claimed an exemption in the amount of
$100,000. If these figures are correct, and subject to the issue listed below, it would appear any recovery by the estate from the sale of the Property would be contingent on a successful objection to Debtor’s homestead exemption, which has not yet been filed nor been detailed in the instant motion.
It is unclear from the motion, but to the extent that the motion attempts to pay unsecured creditors prior to satisfying Debtor’s homestead exemption, such approach is impermissible. While the settlement agreement frames the approach as paying the HLE lien, there is, quite simply, no HLE lien and, to the extent that Creditor is offering a carve-out of $25,000, the compromise does not articulate a legal basis by which the such amounts could be used to pay unsecured creditors prior to satisfying the homestead exemption.
It appears that Creditor may be receiving a small windfall from the proposed compromise, which is not adequately explained or detailed. The Court takes judicial notice of the removed state court complaint and notes that Creditor requested a judgment of $252,516.94. The Court also takes judicial notice of the claims register, and notes that Creditor filed an unsecured claim on April 13, 2018, in the amount of $301,167.85 ("Claim 2"). Based on the record before the Court, it appears that the proposed compromise transforms Claim 2 into a secured claim and increases the claim amount by approximately
$17,000. Additionally, the proposed compromise would further increase Creditor’s recovery depending upon the sale price of the Property or success in the potential avoidance actions.
11:00 AM
The consideration the estate is receiving from this compromise, on the other hand, is unclear and speculative, given that any recovery by the estate appears to be conditioned on a successful objection to Debtor’s homestead exemption,
depends upon the sale price of the Property, which has not been detailed in the motion, and also depends upon the recovery in the potential avoidance actions, which has not been described at all.
On the record before the Court, the Court is simply unable to ascertain the fairness or reasonableness of the proposed compromise.
Parties to address the issues above, and the Court may CONTINUE the matter for supplemental briefing.
APPEARANCES REQUIRED.
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Movant(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
11:00 AM
From: 12/5/18 EH
Docket 14
On September 18, 2018, Rob Devocht ("Debtor") filed a Chapter 7 voluntary petition. That same day, the Court automatically generated two deficiency notices. Docket Number 3 is the "Case Commencement Deficiency Notice" which informs Debtor that he is required to file the declaration as to whether income was received from an employer within sixty days of the petition date. Docket Number 4 is the "Notice of Dismissal of Case if Required Documents Are Not Filed or Signed" which informs Debtor that he is required to file the statement about your social security numbers.
On September 20, 2018, Debtor filed the statement about your socials security number. Debtor failed to file the income declaration, however, and, on November 5, 2018, the case was dismissed.
On November 7, 2018, Debtor filed a motion to reconsider dismissal.
11:00 AM
While Debtor’s motion to vacate dismissal cites FED. R. CIV. P. Rule 60(b)(1) and (6), the motion fails to articulate the appropriate legal standard or apply that standard to the facts of the case. Nevertheless, the Court notes that Local Rule 1017-2(c)(1) states:
Any motion requesting that the dismissal of a case for failure to file a required document or for failure to appear at the meeting of creditors be vacated must include as exhibits to the motion all of the documents that were not timely filed and must be supported by a declaration under penalty of perjury establishing a sufficient explanation why the documents were not timely filed. The motion may be ruled on without further notice or hearing pursuant to LBR 9013-1(q).
Therefore, the Court will construe the instant motion as a motion pursuant to Local Rule 1017-2(c)(1). The Court notes that the deficient document is attached to the motion, although not authenticated and somewhat incomplete, and that the declaration submitted contains a reasonably sufficient explanation why the document was not timely filed.
The Court is inclined to GRANT the motion, VACATING dismissal. Debtor is instructed to file the outstanding income declaration within thirty days of the entry of the order vacating dismissal, or the case may be dismissed without further notice.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Rob Johannes Devocht Represented By Gilbert A Diaz
Movant(s):
Rob Johannes Devocht Represented By Gilbert A Diaz Gilbert A Diaz
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
From: 11/14/18 EH
Docket 18
- NONE LISTED -
Debtor(s):
Renard Louis Hamilton Pro Se
Joint Debtor(s):
Regina Elizabeth Hamilton Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
From: 11/14/18 EH
Docket 13
- NONE LISTED -
Debtor(s):
Danny Arthur Goodro Represented By Dina Farhat
Joint Debtor(s):
Marina Hernandez Goodro Represented By Dina Farhat
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From: 12/5/18
CASE DISMISSED 10/29/18
EH
Docket 16
On October 1, 2018, Timothy Hill ("Debtor") filed a Chapter 7 voluntary petition. On October 29, 2018, the case was dismissed for failure to file case commencement documents.
On November 7, 2018, UST filed a motion for an order compelling attorney to file disclosure of compensation pursuant to 11 U.S.C. § 329.
11:00 AM
11 U.S.C. § 329(a) states:
Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
FED. R. BANKR. P. Rule 2016(b) provides further details regarding the requirements imposed by § 329. Here, Debtor’s counsel has failed to file the required disclosure of compensation. The Court has authority to enter an order directing the disclosure of such compensation, and will routinely direct Debtor’s counsel to file the required disclosure. See, e.g., In re Shuma, 124 B.R. 668, 677 (Bankr. W.D. Pa. 1991).
The Court is inclined to GRANT the motion, ordering Debtor’s counsel, Marc Grossman, to file the required statement of attorney compensation. Pending UST’s review of the disclosure of compensation, the Court will retain jurisdiction over matters related to 11 U.S.C. § 329.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Timothy John Hill Represented By Marc E Grossman
11:00 AM
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Jesus Davila Romero Represented By Neil R Hedtke
Movant(s):
Jesus Davila Romero Represented By Neil R Hedtke
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
11:00 AM
Also #6 EH
Docket 47
10/17/2018
On April 13, 2018, Desert Ice Castle, LLC ("Debtor") filed its petition for chapter 7 relief. Steven Speier is the duly appointed chapter 7 trustee ("Trustee"). The Debtor’s Managing Member and alleged sole owner is Anthony Liu ("Liu"). The petition indicated that the Debtor owned assets totaling $1,864.61 and had liabilities totaling $860,500. The Debtor listed two claimants in Schedule F, one claim of Andrzej Luczynski ("Luczynski") in the amount of $800,000 (as disputed) and a claim of Lui Bin in the amount of $60,500. On September 12, 2018, Luczynski filed Claim No 1-1 in the amount of $3,200,000 based on a State Court Action for "unlawful termination [of] joint venture; conversion; unlawful eviction". Luczynski has further indicated that a trial date for the State Court Action is set for November 2, 2018. The Docket reflects that a Motion to Disallow Claim No. 1 has been set for hearing on October 24, 2018.
On September 10, 2018, the Debtor filed a motion to dismiss the bankruptcy ("Motion"). A notice of Non-opposition was filed by Lui Bin on the same date.
Opposition to the Motion was filed by Luczynski and the Trustee on October 3, 2018 (the "Oppositions"). The Debtor filed an Omnibus Reply to the Oppositions on October 10, 2018 ("Reply").
11:00 AM
The Debtor seeks dismissal pursuant to § 305(a)(1). Section 305(a)(1)
provides as follows:
The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if—
the interests of creditors and the debtor would be better served by such dismissal or suspension;
11 U.S.C. § 305(a)(1); In re Eastman, 188 B.R. 621, 625 (9th Cir. BAP 1995). The
courts that have construed § 305(a)(1) are in general agreement that abstention in a properly filed bankruptcy case is an extraordinary remedy, and that dismissal is appropriate under § 305(a)(1) only in the situation where the court finds that both "creditors and the debtor" would be "better served" by a dismissal. Id. (internal citations omitted). The legislative history uses the following example of such a situation:
an arrangement is being worked out by creditors and the debtor out of court, there is no prejudice to the rights of creditors in that arrangement, and an involuntary case has been commenced by a few recalcitrant creditors to provide a basis for future threats to extract full payment.
H.R.Rep. No. 95–595, 95th Cong., 1st Sess. 325 (1977); 1978 U.S.C.C.A.N. 5963,
6281.
As the statutory language and legislative history demonstrate, the test under § 305(a) is not whether dismissal would give rise to a substantial prejudice to the debtor. Nor is the test whether a balancing process favors dismissal. Rather, the test is whether both the debtor and the creditors would be "better served" by a dismissal.
In support of the Motion, the Debtor argues that (1) Luczynski will suffer no prejudice from dismissal of the case because the amended complaint filed in the State Action dismissed the Debtor from the complaint; (2) Creditor Lui Bin will be paid in full; (3) the only parties benefitting from continuation of the case are the Trustee and his professionals. Although the Debtor has seemingly been dismissed from the underlying State Court litigation, the State Action retains allegations that the Debtor is an alter ego of the named defendant, Liu. (Roman Decl. ¶ 2).
The Oppositions essentially assert that (1) Luczynski has filed a proof of claim
11:00 AM
that constitutes prima facie evidence of a claim; and (2) avoidable insider payments have been discovered that will benefit the Debtor’s creditors.
On the current record, the Court is inclined to DENY the Motion. Here, assuming (as the Court must at this juncture) that Luczynski may have an enforceable claim against the Debtor’s estate, dismissal is likely to result in plain legal prejudice to Luczynski because the Debtor and its principal/sole shareholder seek to payoff the only other unsecured creditor in full in order to force a dismissal. The Debtor’s strategy is a transparent violation of the bankruptcy code’s command that similarly situated creditors must be treated similarly. Additionally, the Court is unconvinced that the dismissal of the Debtor from the underlying State Court Action is a sufficient basis to find that the Debtor has no remaining liability to Luczynski. In fact, the Debtor’s evidence confirms that Luczynski’s complaint continues to argue that the Debtor and Liu are alter egos. For now, the Court agrees with the Trustee and Luczynski that dismissal would be premature at this point.
Based on the foregoing, the Court finds that Debtor has not met its burden of demonstrating that both the Debtor and creditors will be "better served" by dismissal.
APPEARANCES REQUIRED.
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Thomas J Eastmond
11:00 AM
From: 10/24/18, 11/28/18 Also #5
EH
Docket 55
- NONE LISTED -
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Movant(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
EH
Docket 26
On March 30, 2018, Harold and Alice Williams (collectively, "Debtors") filed their petition for chapter 7 relief. Robert Whitmore is the duly appointed chapter 7 trustee ("Trustee"). On November 9, 2018, the Trustee filed objection to Claim No. 1 of the County of San Bernardino (the "County"). The Trustee requests that absent amendment by the County to their claim to specify any portion of the claim that is unsecured, that the Court enter an order allowing the claim as fully secured only, and disallowed to the extent no unsecured portion is claimed. Service was proper and no opposition has been filed.
The Court is inclined to SUSTAIN the Trustee’s Objection in its entirety.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Harold Roy Williams Represented By Jacqueline D Serrao
11:00 AM
Joint Debtor(s):
Alice Gwendolyn Williams Represented By Jacqueline D Serrao
Movant(s):
Robert Whitmore (TR) Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
From: 12/5/18 EH
Docket 53
On January 5, 2018, Charlie Parker ("Debtor") filed a Chapter 7 voluntary petition. Schedule A identified certain real property located at 26076 Cohoe Loop Rd., Kasiloff, AK 99610 (the "Property"). Schedule A identified the value of the Property as $70,100, and appears to identify Debtor as the 50% owner of the Property.
Schedule C purported to exempt the Property in full. On February 14, 2018, Debtor filed amended schedules indicating that he owned co-owned the Property with Andrea Parker; Debtor also appears to have removed his claimed exemption in the Property. On March 7, 2018, Debtor amended his schedules again, although it is unclear whether this amendment purported to exempt the Property in full or remove any exemption in the Property. On April 16, 2018, Debtor received a discharge. On July 18, 2018, Debtor amended his schedules again, this time increasing the value of the Property to $75,000 and indicating that his interest was as a tenant in common; the Schedule C filed on this date does not contain any mention of any real property exemption.
On November 12, 2018, Trustee filed a motion for an order: (1) approving sale of real
11:00 AM
property, subject to overbids; (2) authorizing sale free and clear of liens and interests;
authorizing release of funds from escrow; and (4) approving payment of real estate commissions. Trustee proposes to sell the property to Matthew Hall & Donna Kerrigan (the "Purchasers") for $60,000. Proposed payments from the proceeds include: (1) $3,600 for real estate commission; (2) $1,200 for escrow charges and fees; (3) $1,244.42 for property taxes; and (4) $26,977.79 to co-owner (Debtor’s ex- wife), leaving $26,977.79 for the bankruptcy estate.
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary course, after notice and a hearing. A sale pursuant to § 363(b) requires a demonstration that the sale has a valid business justification. In re 240 North Brand Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
The motion contains some evidence of the Property’s marketing and also indicates that Trustee has received multiple offers for the Property, the latter offer representing a 20% increase over the original offer. Given the fact that the sale appears to be a good faith, arms-length transaction, and the fact that the estate would receive approximately $27,000 for distribution to unsecured creditors, the Court concludes that Trustee has articulated an adequate business reason for the sale.
Sale Free & Clear of Liens
11:00 AM
11 U.S.C. § 363(f) (2010) states:
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 a legal or equitable proceeding, to accept a money satisfaction of such interest.
Here, the only liens on the Property relate to property taxes in the amount of
$1,244.42. This amount is far less than the sale price of the Property and, therefore, § 363(f)(3) permits Trustee to sell the Property free and clear of liens.
14-Day Stay
FED. R. BANKR. P. Rule 6004(h) states: "An order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." The Court deems the absence of objections to be consent to the relief requested, pursuant to Local Rule 9013-(1)(h), and, therefore, will waive the stay of Rule 6004(h).
11:00 AM
Miscellaneous Provisions
The Court has reviewed the remainder of Trustee’s miscellaneous requests. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has reviewed the requested Broker compensation of 6% of the sale price (totaling $3,600) and finds such compensation to be reasonable and customary. The Court has reviewed Trustee’s proposed distribution of sale proceeds, and the Court finds that such distribution is reasonable and proper.
Finally, the Court has reviewed the declarations of the Purchasers, and finds the declarations sufficient for a determination that the Purchasers are good faith purchasers pursuant to 11 U.S.C. § 363 (m).
The Court is inclined to GRANT the motion in its entirety. Specifically, the Court is inclined to authorize the sale of the Property free and clear of liens, approve the overbid procedures, approve the Broker’s compensation, determine that the Purchasers are good faith purchasers, waive the 14-day stay under Rule 6004(h), and authorize the proposed payments from the sale proceeds.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Charlie W Parker Represented By David J Workman
Movant(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
Trustee(s):
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
11:00 AM
Docket 28
12/12/2018
No opposition has been filed. Service was Proper.
The Trustee’s Final Report has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the following administrative claims will be allowed:
Trustee Fees: $ 1,102.25 Trustee Expenses: $ 30
The Trustee may submit on the tentative.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Daniel Ramon Reyes Represented By Rex Tran
Joint Debtor(s):
Evelyn Reyes Represented By
11:00 AM
Trustee(s):
Rex Tran
Steven M Speier (TR) Pro Se
11:00 AM
From: 8/22/18, 9/26/18, 10/24/18 Also #11 & #12
EH
Docket 104
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 8 ("Claim") of Sake Consulting Engineers, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, an entity that is not the Debtor and therefore not entitled to allowance as a claim.
On August 6, 2018, the Claimant filed its response to the Objection ("Response"). On September 19, 2018, the Trustee filed his reply ("Reply")
11:00 AM
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, Trustee has pointed to the fact that the evidence attached to the Claim are addressed to Paul Minnick as a representative of MCG Development. In response, Claimant has provided the same documents referenced by the Trustee and has failed to provide any admissible evidence indicating that liability on the contract can be collected against the Debtor’s estate.
11:00 AM
Based on the foregoing, the Court is inclined to SUSTAIN the Objection disallowing Claim No. 8 of the Claimant.
APPEARANCES REQUIRED.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta - INACTIVE -
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18, 9/26/18, 10/24/18 Also #10 & #12
EH
Docket 108
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 10 ("Claim") of Gouvis Engineering Consulting Group, Inc. (the "Claimant"). The Trustee’s Objection asserts that the Claim is supported by documentation showing that it is for services rendered to MCG Development, which is an entity that is not the Debtor and therefore is not entitled to allowance as a claim. The Objection was properly served and no opposition or response has been filed.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
11:00 AM
evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
Here, the Trustee has pointed to facts tending to defeat the claim by virtue of the fact that Claimant’s own supporting documentation evinces a contractual relationship with Paul Minnick as representative of MCG Development Company, Inc., not on behalf of the Debtor. Absent evidence of a relationship between the Debtor and Claimant, the Claimant has failed to establish the existence of a claim against the Debtor’s estate.
11:00 AM
The Court is inclined to SUSTAIN the Objection and DISALLOW Claim No. 10 in its entirety.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta - INACTIVE -
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 8/22/18, 9/26/18, 10/24/18 Also #10 & #11
EH
Docket 102
On September 8, 2015, the Manors San Bernardino Ave LLC ("Debtor") case was filed as an involuntary case. The Order for Relief was entered on November 13, 2015. John P. Pringle is the duly appointed chapter 7 trustee ("Trustee").
On July 13, 2018, the Trustee filed his objection to Claim No. 7 ("Claim") of Norman Musselman (the "Claimant"). The Trustee’s Objection asserts that the Claim is fully secured and not entitled to a dividend from the Estate.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that
11:00 AM
filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." United States v. Offord Fin., Inc., (In re Medina), 205 B.R. 216,222 (9th Cir. BAP 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "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." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. Ashford v.
Consol. Pioneer Mort. (In re Consol. Pioneer Mort.), 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant.
Lundell, 223 F.3d at 1039; Holm, 931 F.2d at 623.
The Claim indicates that it is secured by a Recorded Deed of Trust and Note and that the fair market value of the Property at issue exceeds the amount of the Claim such that it is fully secured. The Trustee requests that the Claim be allowed as fully secured but not entitled to a dividend from the estate. Based on the lack of prejudice to the Claimant and the Claimant’s failure to file response or opposition which this Court deems as consent pursuant to LBR 9013-1(h), the Court is inclined to SUSTAIN the objection and ALLOW the Claim as a fully secured claim not entitled to a dividend.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
11:00 AM
Debtor(s):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta - INACTIVE -
Movant(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
From: 10/24/18, 12/5/18 Also #14
EH
Docket 46
- NONE LISTED -
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
From: 10/24/18, 12/5/18 Also #13
EH
Docket 45
On March 22, 2011, Rene Ferrer & Lucia Lopez ("Debtors") filed a Chapter 7 voluntary petition. On July 27, 2011, Debtors received a discharge and, one week later, the case was closed.
On August 11, 2017, Debtors filed a motion to reopen the case. It does not appear that Debtors promptly and properly uploaded an order on the motion, and the case was not actually reopened until the entry of an order (the "Order") June 8, 2018, which also allowed Debtors to amend their schedules, setting a deadline of September 6, 2018 for such amendment to be completed. On June 29, 2018, Debtors amended their schedules. On Schedule B, Debtors listed certain pelvic repair system products liability litigation, of an unknown value, and, on Schedule C, Debtors claimed an exemption in the litigation of, again, unknown value.
11:00 AM
On July 25, 2018, Debtors filed a motion objecting to Debtors’ claim of exemptions. Debtors filed their response on August 15, 2018. In their response, Debtors conceded that they improperly claimed exemptions pursuant to both § 703 and § 704. On August 28, 2018, Debtors amended their schedules to correct the improperly claimed exemptions.
In its objection, Trustee also argued that it was improper for Debtors to amend their schedules without notice and a hearing. The Court’s tentative ruling issued prior to the hearing on August 29, 2018, noted that there was conflicting case law on the issue, and noted that the Court had already entered the Order permitting Debtors to amend their schedules.
On September 27, 2018, Trustee filed a motion to reconsider the Order, and set a hearing for October 24, 2018. On October 22, 2018, two days before the hearing, Debtors filed their opposition. The opposition, however, appears to have simply been an identical copy of their opposition in the last motion.
At the hearing on October 24, 2018, the Court noted that Debtors’ opposition was filed twelve days late, and, because it was simply a copy of a response filed prior to the filing of the motion to reconsider, did not actually address the contents of the motion to reconsider. The Court set a new briefing schedule, and sanctioned Debtors’ counsel in the amount of $1,580 to reimburse the costs of Trustee’s attorney. On November 14, 2018, Debtors filed their amended opposition. On November 28, 2018, Trustee filed its reply.
Trustee moves under FED. R. CIV. P. Rule 60(b)(1)-(6),1 incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024. Rule 60(b)(1)-(6) states:
11:00 AM
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
mistake, inadvertence, surprise, or excusable neglect;
(6) any other reason that justifies relief
As noted by Trustee, "errors of law are cognizable under Rule 60(b)." Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982).
To determine whether an error of law, or a mistake, was made in the present case, the Court turns to the underlying legal question: whether Debtor retains the right to amend the schedules, as a matter of course, in a reopened case. The two operative rules are FED. R. BANKR. P. Rule 1009(a) and Rule 9006(b)(1). FED. R. BANKR. P. Rule 1009(a)
states, in relevant part: "A voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed." FED. R. BANKR. P. Rule 9006(b)(1) states:
Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
As noted in the Court’s tentative ruling of August 29, 2018, there is a split in caselaw as to whether Rule 1009(a) operates to require a motion pursuant to Rule 9006(b)(1) in order for a debtor to amend their schedules in a reopened case. See, e.g., In re Dollman, 583 B.R. 268, 271-73 (Bankr. D.N.M. 2017) (summarizing different approaches); 9 COLLIER’S ON BANKRUPTCY ¶ 1009.02[3] (16th ed. 2015) ("Once the
11:00 AM
case has been closed, a debtor may have to show excusable neglect in order to amend the schedule of exemptions."). But see In re Goswani, 304 B.R. 386, 392 (B.A.P. 9th Cir. 2003) ("If the drafters had intended to require court permission before the filing of amended schedules in reopened cases, they would have explicitly said so.").
As a preliminary matter, Debtors primary argument in opposition to the motion to reconsider appears to be that In re Goswani is binding law. The Bankruptcy Appellate Panel is not, however, binding. See In re Zimmer, 313 F.3d 1220, 1225 n.3 (9th Cir.
2002) ("Although the binding nature of Bankruptcy Appellate Panel decisions – an open question in this circuit – is not squarely before us in this case, we join Judge O’Scannlain’s call for the Judicial Council to consider an order clarifying whether the bankruptcy courts must follow the BAP."); see also Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470 (9th Cir. 1990) (noting that the BAP has declared itself binding but stating that its "binding effect is so uncertain"). A review of the case law indicates that bankruptcy judges in this district are split on the issue. See, e.g., In re Arnold, 471
B.R. 578 (Bankr. C.D. Cal. 2012). This Court agrees with In re Arnold that in the absence of definitive guidance, in whatever form, declaring that the BAP is binding, BAP decisions do not have binding effect.
Nevertheless, BAP opinions certainly can be persuasive, although this Court has a duty to consider the reasoning detailed in the decision. The Court does not consider the decision relied upon by Debtors, In re Goswani, to be persuasive. As noted by In re Dollman, 583 B.R. 268, 271-273 (Bankr. D.N.M. 2017), three different approaches to this issue have been developed.
First, the broad approach, as articulated in In re Goswani, essentially concludes that there is no difference between an open (never closed) case and a re-opened case.
However, "[r]eading Rule 1009(a) to permit a debtor to amend schedules in a reopened case anytime as a matter of course before the case is re-closed would make the limiting clause, "at any time before the case is closed," inoperative and superfluous because schedules can be amended only in an open case." Dollman, at
272. Based on the reasoning in Dollman, the Court concludes that Rule 1009(a) does impose a deadline – the closing of the case – and rejects the broad approach’s attempt to reverse time and undo the passing of that deadline.
11:00 AM
Second, the Court rejects the narrow approach, which prohibits any amendment to schedules after a case is closed, then reopened, for the simple reason that this approach does not explain why Rule 9006(b)(1) is inapplicable to the instant situation. Id. ("The Court finds the narrow approach too restrictive. It fails to recognize or apply Rule 9006(b)(1) allowing enlargement of time under certain circumstances if the period has expired before the motion to enlarge time is filed.").
Consequently, the Court finds the middle approach to be the appropriate approach. Rule 1009(a) imposed a deadline for amendment of the schedules – the closing of the case – and that deadline passed in the instant case. Rule 9006(b)(1), however, affords Debtors an opportunity to file a motion to amend their schedules, which, however, did not occur in the instant case.
Returning to FED. R. CIV. P. Rule 60(b), the Court first concludes it is inappropriate to vacate judgment pursuant to Rule 60(b)(1) on the basis of a mistake or error in law. When different courts have taken different approaches on the legal issue, and there is no binding guidance on the issue, it would appear inappropriate to classify one of those approaches as an "error in law" as that phrase is used in the context of a Rule 60(b) motion. See generally Liberty Mut. Ins. Co., 691 F.2d at 440-441 (collecting cases).
Nevertheless, the Court believes relief pursuant to Rule 60(b)(6) is appropriate in the instant case. Rule 60(b)(6) "gives the [ ] court power to vacate judgments ‘whenever such action is appropriate to accomplish justice." U.S. v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982) (quoting Klapprott v. U.S., 335 U.S. 601, 615 (1949)). "In order to obtain such relief from a judgment, however, ‘extraordinary circumstances’ must exist." Id. (quoting Ackerman v. U.S., 340 U.S. 193, 199 (1950)).
Here, the extraordinary circumstances in the present case are that the Local Rules, specifically Local Rule 5010-1, provide that a motion to reopen the case may be ruled on without a hearing or opportunity to object. Therefore, Trustee was essentially
11:00 AM
precluded from presenting his argument that caselaw is split regarding the propriety of allowing a debtor to amend their schedules in a reopened case without a noticed motion. The only route Trustee had to present its argument was in the form of a Rule 60(b)(6) motion. Given that the Court agrees with Trustee’s argument, and given that Trustee was effectively precluded from introducing its argument in any other manner, the Court concludes that Rule 60(b)(6) relief is appropriate in the instance case.
The Court declines to address the parties’ arguments regarding the "neglect" of Debtors, and whether such neglect was excusable, at the current time. Debtors are free to bring a motion under Rule 9006(b)(1), and present their argument that the failure to properly schedule and exempt the litigation was the result of "excusable neglect," as that term is interpreted in the context of the rule.
The Court is inclined to GRANT the motion, AMENDING the order of June 8, 2018 [Dkt. No. 24], striking ¶¶ 3 and 4 of the order. As such, the amended schedules filed by Debtors are void and of no effect. Debtors may move to amend their schedules pursuant to the applicable rules outlined above.
APPEARANCES REQUIRED.
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Movant(s):
Steven M Speier (TR) Represented By
11:00 AM
Trustee(s):
Robert P Goe Stephen Reider
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
EH
Docket 5
On August 13, 2018, Young Jin Yoon ("Debtor") filed a petition for chapter 7 relief. On November 27, 2018, Vivian Kim ("Plaintiff") filed her complaint to determine dischargeability of a debt pursuant to §§ 523(a)(2) and (a)(6) (the "Complaint"). Plaintiff asserts in her Complaint that she loaned money to Debtor and his wife. Plaintiff further asserts that Debtor and his wife employed the funds loaned by Plaintiff to purchase certain real property located at 32229 Cedar Crest in Temecula, CA 92592 (the "Property"). Plaintiff further alleges that Debtor and his wife transferred the Property for no consideration to their son Joshua Park ("Park"), but then themselves made maintenance and mortgage payments on the Property. The Plaintiff’s primary assertion is that the Defendant and his family used her loan to purchase the Property and have since sought to hinder her in her ability to recover against the Property’s value.
On November 12, 2018, Defendant Park filed a Motion to Expunge Lis Pendens and For Award of Attorney’s Fees and Costs ("Motion") which Plaintiff opposed on 11/27/2018 ("Opposition"). No reply has been filed.
The grounds for expungement of an improperly recorded lis pendens are:
Invalid service of the notice;
Failure to plead a real property claim;
2:00 PM
Failure to establish the probable validity of the real property claim; and
A showing that adequate relief can be secured to the claimant by the giving of an undertaking.
43 Cal. Jur. 3d Lis Pendens § 7.
Park challenges the lis pendens filed by Plaintiff on the grounds that (1) the Plaintiff must establish by a preponderance of the evidence the probable validity of a real property claim on which the notice of lis pendens is based; and (2) the lis pendens does not contain a real property claim.
In her response, the Plaintiff submitted evidence in the form of her own declaration and from a portion of a transcript from a 2004 examination of the Defendants. The evidence supports the Plaintiff’s allegations that Park paid no consideration to his parents for title to the Property and that Park’s parents made payments towards the mortgage and possibly other expenses of the Property while their son was away in the Navy. The Plaintiff’s evidence is sufficient to overcome the first argument of Park.
Second, the Court finds persuasive Plaintiff’s legal authority from the Supreme Court of California indicating that a fraudulent transfer claim which seeks to void a transfer of real property affects the title to or possession of real property such that it constitutes a real property claim for purposes of the California lis pendens statutes. Kirkeby v. Superior Court, 33 Cal. 4th 642, 649, 93 P.3d 395, 400 (2004).
Here, the Complaint does not specifically allege a cause of action under California Civil Code § 3439.07 which was the operative claim in the Kirkeby case. Nonetheless, the Complaint does seek to void the transfer of the Property to Park as a remedy for the Fourth Claim of Relief. Based on the relief sought, given that Park has not sought to dismiss this claim, and has failed to file any reply to the Opposition, the Kirkeby holding is controlling on this issue.
Based on the foregoing, the Court is inclined to DENY the Motion.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Young Jin Yoon Represented By Ji Yoon Kim
Defendant(s):
Young Jin Yoon Represented By Ji Yoon Kim
Hyun Myung Park Represented By Ji Yoon Kim
Joshua Park Represented By
Ji Yoon Kim
Movant(s):
Joshua Park Represented By
Ji Yoon Kim Ji Yoon Kim Ji Yoon Kim
Joshua Park Pro Se
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01203 Frealy v. Davila et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Jesus Davila Romero Represented By Neil R Hedtke
Defendant(s):
Lorena Davila Pro Se
Jesse L. Davila Pro Se
Jesus Davila Romero Pro Se
Plaintiff(s):
Todd Frealy Represented By
Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
From: 11/7/18 Also #18
EH
Docket 13
- NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
Defendant(s):
Amy Williams Represented By Anerio V Altman
Richard M Thomas Jr. Pro Se
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
Movant(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
2:00 PM
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Trustee(s):
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
From: 9/26/18, 11/7/18 Also #17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
Defendant(s):
Amy Williams Represented By Anerio V Altman
Richard M Thomas Jr. Pro Se
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
2:00 PM
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Frank X Ruggier
Trustee(s):
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
Docket 37
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
2:00 PM
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Docket 35
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland Thomas F Nowland
2:00 PM
Plaintiff(s):
Anis Khalil Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01123 First Home Bank v. Karadas
From: 7/25/18, 10/24/18, 11/14/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Plaintiff(s):
First Home Bank Represented By Joshua N Kastan
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 11/28/18 EH
Docket 133
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
Movant(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr
2:00 PM
Anthony J Napolitano
A. Cisneros Represented By
Chad V Haes
D Edward Hays
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
From: 11/28/18 Also #24
EH
Docket 93
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Douglas J. Roger and Nicole L. Represented By Marc C Forsythe
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
2:00 PM
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
From: 11/28/18 Also #23
EH
Docket 95
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Movant(s):
Liberty Orthopedic Corporation Represented By
Misty A Perry Isaacson
Universal Orthopaedic Group Represented By
Misty A Perry Isaacson
OIC Medical Corporation Represented By
Misty A Perry Isaacson
2:00 PM
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
From: 11/14/18 Also #26 - #28
EH
Docket 98
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
Movant(s):
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
From: 11/14/18 Also #25 - #28
EH
Docket 99
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
Movant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
From: 11/14/18 Also #25 - #28
EH
Docket 97
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
Movant(s):
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18, 8/22/18, 10/31/18,
11/14/18
Also #25 - #27
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
2:00 PM
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
11:00 AM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
Docket 117
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Don Cameron Burns Represented By Don C Burns
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
10:00 AM
Victorville, CA, 92394 Under 11 U.S.C. § 362
(HOLDING DATE)
MOVANT: NATIONSTAR MORTGAGE LLC dba MR. COOPER
From: 11/13/18 EH
Docket 133
11/13/18
Service: Proper Opposition: YES
Debtors dispute that they are behind 9 payments and request a 30-day continuance to establish the payment history.
APPEARANCES REQUIRED.
Debtor(s):
James Robert Kinney Represented By John F Brady Lisa H Robinson
Joint Debtor(s):
Stephanie Mae Kinney Represented By John F Brady Lisa H Robinson
10:00 AM
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NAVY FEDERAL CREDIT UNION
EH
Docket 86
12/18/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Anita M. Williams Represented By Patricia M Ashcraft
Movant(s):
Navy Federal Credit Union Represented By Katelyn R Knapp Brandye N Foreman Christina J O
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 68
12/18/2018
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Brooks L Sternberg Represented By Julie J Villalobos
Joint Debtor(s):
Angela Caldero Represented By Julie J Villalobos
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST
EH
Docket 56
12/18/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Ramon Urrutia Represented By
C Scott Rudibaugh
Movant(s):
Deutsche Bank National Trust Represented By Bonni S Mantovani
Diana Torres-Brito
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS From: 4/24/18, 5/29/18, 7/31/18, 10/30/18
EH
Docket 55
Hearing Date: 4/24/18 Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
GRANT Movant leave to offer/provide/enter into a potential forbearance, loan modification, refinance agreement or other loan workout. Request for APO is DENIED as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Carl J Charlot Represented By
Michael A Younge
Joint Debtor(s):
Jacinta S Charlot Represented By Michael A Younge
10:00 AM
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Seth Greenhill Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 9/11/18, 10/30/18 EH
Docket 35
10/30/2018
The Movant submitted evidence that the Debtor is delinquent in the amount of
$30,303.59, having missed 10 postconfirmation payments. The parties stipulated toa continuance of the hearing from September 11, 2018 to this date. The primary basis of opposition appears to be regarding the status of a loan modification application.
Parties to update the Court.
APPEARANCES REQUIRED.
Debtor(s):
Joan Eleanor Demiany Represented By Jenny L Doling Summer M Shaw
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
CASE DISMISSED 11/8/18
From: 6/6/18, 9/11/18, 10/30/18 EH
Docket 59
09/11/18
Service: Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. GRANT request for relief from the co-debtor stay. GRANT request under ¶ 3 permitting Movant to offer Debtor loan workout options; and GRANT order designating Debtor as "borrower" under Cal. Civil Code § 2920.5. DENY request pursuant to § 362(d)(2) for lack of cause shown and DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Mark Gehrig Represented By
Todd L Turoci
10:00 AM
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: ALTA VISTA CREDIT UNION
From: 9/11/18, 11/13/18 EH
Docket 44
- NONE LISTED -
Debtor(s):
Thomas Lee Abercrombie Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rebecca Anne Abercrombie Represented By
Rabin J Pournazarian
Movant(s):
Alta Vista Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 44
- NONE LISTED -
Debtor(s):
Patricia Morales Represented By Dana Travis
Movant(s):
Specialized Loan Servicing LLC Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION From: 10/16/18, 11/6/18, 11/27/18
EH
Docket 30
Service is Proper Opposition: Yes
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 11/27/18 EH
Docket 67
Service is Proper Opposition: None
The Court is inclined to GRANT relief from the automatic stay pursuant to § 362(d) (1). GRANT waiver of Rule 4001(a)(3) stay. DENY request for relief from § 1301(a) stay because Movant has failed to serve the co-debtor at the address identified in Schedule H. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 13 as moot.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Cheryl Linda Fernandez Represented By Matthew D. Resnik
Movant(s):
Wilmington Savings Fund Society, Represented By
Kelsey X Luu
10:00 AM
Trustee(s):
Jamie D Hanawalt Gilbert R Yabes
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 41
- NONE LISTED -
Debtor(s):
Gilbert D Olivares Represented By Scott Kosner
Movant(s):
Freedom Mortgage Corporation Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 57
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Deborah A Neville Represented By Hayk Grigoryan
Joint Debtor(s):
Ronnie L Neville Represented By Hayk Grigoryan
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 28
12/18/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
John Arquillano Represented By Andrew Nguyen
Joint Debtor(s):
Janet Arquillano Represented By Andrew Nguyen
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
10:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 12
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Dean Gregory Haidl Represented By Brian J Soo-Hoo
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 11
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Christopher T. Seelig Represented By Keith Q Nguyen
Joint Debtor(s):
Jamie H. Seelig Represented By Keith Q Nguyen
Movant(s):
Wells Fargo Bank, N.A. dba Wells Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
MOVANT: ONTARIO-MONTCLAIR SCHOOL EMPLOYEES FEDERAL CREDIT UNION
EH
Docket 26
- NONE LISTED -
Debtor(s):
Joseph N Duguay II Represented By Andy C Warshaw
Movant(s):
Ontario-Montclair School Represented By
Bruce P. Needleman
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 13
12/18/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 15
12/18/18
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Adrien Liets Represented By
Melissa A Raskey
Joint Debtor(s):
Marine Lazaro Liets Represented By Melissa A Raskey
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang
10:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
EH
Docket 19
12/18/2018
Service: Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT as to ¶3 of prayer for relief. GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Rosa Esmeralda Macias Represented By Stephen L Burton
Movant(s):
Wilmington Trust, National Represented By Sean C Ferry
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
U.S.C. 362(j) or That No Stay is in Effect under 11 U.S.C. 362(c)(4)(A)(ii) MOVANT: ORANGE COUNTYS CREDIT UNION
EH
Docket 18
12/18/2018
Service was proper and no opposition has been filed.
The Movant has correctly indicated that the Debtor has had a prior case pending and dismissed within one year of the instant filing. Pursuant to § 362(c)(3), having failed to seek to extend the stay during the 30-day period following the petition date of October 17, 2018, the automatic stay has terminated by operation of law. The Motion is GRANTED.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Steven Michel McCann Represented By Brian J Soo-Hoo
Movant(s):
Orange Countys Credit Union Represented By Mirco J Haag
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 11
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Dan Henley Galey Represented By Carey C Pickford
Joint Debtor(s):
Buenaflor Sabino Galey Represented By Carey C Pickford
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
MOVANT: CHUN CHUN WEN
EH
Docket 10
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for order confirming that no stay is in effect for lack of cause shown. GRANT request for annulment of the stay to validate Movant’s postpetition acts.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Jasmine Keshawn Jennings Pro Se
Movant(s):
Chun Wen Represented By
Luke P Daniels
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: CAB WEST LLC
EH
Docket 8
12/18/18
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Paula Jean Campbell Represented By
Diane M Singleton-Smith
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
MOVANT: GENOVEVA CAMPA
EH
Docket 22
- NONE LISTED -
Debtor(s):
Carmen Lynn Chilson Represented By Steven A Alpert
Movant(s):
Genoveva U Campa Represented By Barry L O'Connor
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 7
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay. DENY request for APO as moot.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Efrain Cortez Represented By
Kevin M Cortright
Movant(s):
TD Auto Finance LLC Represented By Jennifer H Wang
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: MECHANICS BANK
EH
Docket 15
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Joseph F. Mark Represented By Keith Q Nguyen
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WILLIAM SMITH AND MONICA SMITH
EH
Docket 13
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under § 362(d)(1). GRANT waiver of 4001(a)(3) stay. APPEARANCES REQUIRED.
Debtor(s):
Jacqueline Williams Represented By Marjan Alitalaei
Movant(s):
William & Monica Smith Represented By Helen G Long
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: WELLS FARGO BANK NA
CASE DISMISSED 11/27/18
EH
Docket 10
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(4). Court finds that bankruptcy case was part of a scheme to hinder, delay and defraud creditors based on multiple bankruptcy filings affecting this property. The Court finds bad faith as to the Debtor. GRANT waiver of 4001(a)(3) stay. GRANT pursuant to ¶ 3 and relief from co-debtor stay. DENY request for APO as moot.
APPEARANCES WAIVED. Movant to lodge order within 7 days.
Debtor(s):
Jose F Mejia Pro Se
Movant(s):
WELLS FARGO BANK, N.A. Represented By Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 9
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT waiver of 4001(a)(3) stay.
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Movant to lodge order within 7 days.
Debtor(s):
Demar Austin Browning Represented By Fred Edwards
Joint Debtor(s):
Nunia Naavavau Foaki Otuafi Represented By Fred Edwards
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
10:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
MOVANT: BIANI BERLENDA MORA
EH
Docket 8
12/18/2018
The Debtor’s prior case was dismissed for a failure to make plan payments. The Debtor explains that the shortfall was due to an unexpected dip in the payments from social security that Debtor was receiving. Debtor’s new Schedule I shows substantially increased payments from social security. However, the Declaration of the Debtor provides insufficient detail to explain why the prior benefit payments stopped and why the current benefits have increased so significantly.
APPEARANCES REQUIRED.
Debtor(s):
Biani Berlenda Mora Represented By Steven A Alpert
Movant(s):
Biani Berlenda Mora Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JORGE LINO MADRIGAL
CASE DISMISSED 12/17/18
EH
Docket 7
12/18/2018
The Debtor’s prior case was dismissed on September 12, 2018, in the Southern District of California. The Southern District’s docket indicates that the dismissal resulted from Debtor’s failure to appear and testify at the 341 Meeting of Creditors. The case was filed by the Debtor in pro per. In his declaration, the Debtor asserts that he is a "lay person", was not able to attend his 341 Meeting and did not realize that the meeting could not be postponed.
As to this issue, the Court finds that by hiring counsel to assist him with understanding the duties of a debtor filing chapter 13, the Debtor has shown cause to extend the stay.
However, as to ‘Mr. Cooper’ (aka Nationstar), the Debtor has failed to properly serve Nationstar pursuant to FRBP 7004. Specifically, Rule 7004 requires that Nationstar be served to the attention of an officer. Although, the address served appears valid and the Court believes Nationstar likely accepts service using its new dba Mr. Cooper, the Motion was not served on an officer. Additionally, Nationstar/Mr. Cooper was not identified in ¶1 of the Notice of Motion as required by the form motion.
APPEARANCES REQUIRED.
10:00 AM
Debtor(s):
Jorge Lino Madrigal Represented By Gary S Saunders
Movant(s):
Jorge Lino Madrigal Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: SAMI RUSTOM
EH
Docket 9
12/18/2018
Service is Proper Opposition: None
GRANT relief from the stay under §§ 362(d)(1) and (d)(2). GRANT requests under ¶¶ 7, 9 and 11. GRANT waiver of 4001(a)(3) stay. DENY request for order confirming no stay in effect for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Lucy D Aguilar Pro Se
Movant(s):
SAMI RUSTOM Represented By Shazad Z Omar
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: NOEMI MERAZ ESPINOZA
EH
Docket 15
12/18/2018
Debtor filed her prior case in pro per and had her case dismissed for failure to file information. The Debtor asserts the dismissal resulted from her taking ‘bad advice’ from a party that advised her to file a skeletal petition to save her house. The Debtor has now retained counsel to assist her in her efforts to propose a chapter 13 plan.
Based on the Debtor’s retention of counsel to assist her in understanding the duties of a chapter 13 debtor, the Court finds that the Debtor has overcome the presumption that the case was not filed in good faith. The Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Noemi Meraz Espinoza Represented By
Ramiro Flores Munoz
Movant(s):
Noemi Meraz Espinoza Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
MOVANT: JORGE M AZMITIA AND YOSHIKO AZMITIA
EH
Docket 13
12/18/2018
The Debtors were at least one month delinquent when the case was dismissed on October 25, 2018. At the hearing on the Trustee’s Motion to Dismiss the Debtors could not provide assurances they would cure the arrears.
The Debtors’ declaration asserts that the Debtors fell behind on plan payments because they had to ‘divert resources’ to deal with a death in the family at around the same time that the Debtor Husband was involved in a car accident. The declaration is devoid of any detail as to the expenses they incurred or how specifically these events caused them to fall behind. Given the failure to perform the terms of their prior chapter 13 plan, the burden on the Debtors to overcome the presumption that the instant case was not filed in good faith require clear and convincing evidence. 11 USC
§ 362(c)(3). The declaration falls short. The Court is inclined to DENY the Motion.
Finally, based on the proof of service, it appears that SPS, the servicer of the Debtors’ mortgage loan on their primary residence, was not served via Rule 7004 in that it was not served to the attention of an officer, to an address appropriate for service of process, or by certified mail.
APPEARANCES REQUIRED.
Debtor(s):
Jorge Manuel Azmitia Represented By
10:00 AM
Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Movant(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Yoshiko Azmitia Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Docket 161
- NONE LISTED -
Debtor(s):
AMJ Plumbing Specialists Corp. Represented By
David Lozano
2:00 PM
$164280.00, Expenses: $7207.77. (Turoci, Todd)
(HOLDING DATE)
From: 10/16/18, 10/30/18, 12/4/18 Also #38
EH
Docket 414
12/04/2018
Given the current stage of the chapter 11 proceeding, and finding that action by the Debtor to conclude the case remains outstanding, the Court is inclined to CONTINUE the instant fee application for a short time period to permit the Debtor an opporutnity to file its request for dismissal and/or to otherwise outline a plan for concluding the case.
APPEARANCES REQUIRED.
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
Movant(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
From: 1/9/18, 4/10/18, 7/10/18, 7/24/18, 8/14/18, 10/30/18, 12/4/18
Also #37 EH
Docket 48
- NONE LISTED -
Debtor(s):
Auto Strap Transport, LLC Represented By Todd L Turoci
2:00 PM
CONSTRUCTION, INC.. filed by Creditor Juan Catano, Creditor Faustino Magana, Creditor Donahoo & Associates, PC
MOVANT: JUAN CATANO, FAUSTINO MAGANA, DONAHOO & ASSOCIATES
Also #40 & #41 EH
Docket 113
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
Donahoo & Associates, PC Represented By Richard E Donahoo
Faustino Magana Represented By Richard E Donahoo
Juan Catano Represented By
Richard E Donahoo
2:00 PM
Also #39 & #41 EH
Docket 45
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Movant(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18, 11/6/18
Also #39 & #40 EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
Also #43 & #44 EH
Docket 37
On July 23, 2018, Richard Garavito ("Debtor") filed a Chapter 11 voluntary petition. Debtor previously filed a Chapter 13 case on April 17, 2018, which was dismissed on July 19, 2018.
On August 29, 2018, the Taylor Family Trust of June 16, 2004 ("Creditor"), the primary creditor in the instant case, filed a motion to confirm that the automatic stay terminated pursuant to 11 U.S.C. § 362(c)(3)(A). On September 7, 2018, Debtor filed a motion to continue/impose the automatic stay. Because Debtor has not offered a cognizable legal argument as to why the automatic stay has not terminated, or why Debtor can obtain a continuation of the automatic stay after the statutory deadline, the Court has posted tentative rulings indicating that it intends to grant Creditor’s motion and deny Debtor’s motion.
On September 11, 2018, Debtor filed a motion to dismiss the case and an application
2:00 PM
shortening time. On September 13, 2018, the Court approved the application shortening time, and set a hearing for September 25, 2018.
11 U.S.C. § 1112(b)(1) states:
Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(4) provides a non-exclusive list of sixteen examples of cause – most of which are more appropriately considered when the moving party is an entity other than the debtor.
Here, Debtor’s motion is unclear, at best. The entire argument why the case should be dismissed is reproduced, verbatim, as follows:
In the present case, since the motion to impose and/or continue the stay was not timely filed, the stay will no longer be in effect with the pending motion to terminate the stay filed by secured creditor Taylor Family Trust.
The Debtor should not be penalized due to counsel’s inadvertent calendaring
2:00 PM
error of the 30 days rule of filing a motion to impose and/or continue the stay. However, an argument can be made that under the majority approach a motion to impose or continue the stay shall be filed as to the Debtor individually and not as to the property of the estate. Here, the Subject Property is property of the estate and the automatic stay should be in effect as to the Subject Property.
However, due to circumstances surrounding the possible termination of the stay, the Debtor requests dismissal of this case as there is no purpose if the stay is not in effect as to the Subject Property.
[Dkt. No. 37, pg. 5]. In summary, Debtor acknowledges that the stay has statutorily terminated and the deadline to continue the automatic stay has lapsed, but then argues that such stay termination is with regards to the Debtor only, not property of the estate. Despite the argument, the Debtor then asserts that due to "circumstances" the Debtor requests dismissal because there is "no purpose" if the stay has also terminated as to property of the estate.
There are multiple issues with the above line of argument. First, Debtor does not appear to have raised any coherent cause for dismissal – the only argument made in favor of dismissal, that the "Subject Property" is not protected by the automatic stay, (and thus this Chapter 11 case cannot be successful) is also explicitly rejected by Debtor. Second, § 1112(b) requires the Court to consider whether dismissal or conversion to Chapter 7 is in the best interests of creditors and the estate. Here, Debtor’s schedules filed in the instant case indicate that all creditors would likely be paid in full if this case was converted to Chapter 7. Therefore, pursuant to the analysis required by § 1112(b), it is unclear why this case would be dismissed rather than converted to Chapter 7.
Finally, the Court acknowledges that, in a reply relating to its motion to confirm that the automatic stay has terminated, Creditor has requested that, if the case is dismissed, Debtor be restricted from re-filing by a bar. While raising this argument in a reply relating to a different motion is procedurally improper, the Court need not address the request at the current time given the issues above.
2:00 PM
Debtor and Creditor to argue: (1) whether there is cause for dismissal; (2) whether the automatic stay is in effect as to the Subject Property; and (3) whether dismissal or conversion to Chapter 7 would be in the best interests of creditors.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
MOVANT: RICHARD GARAVITO
From: 12/4/18 Also #42 & #44 EH
Docket 33
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
Movant(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
From: 8/21/18, 10/16/18, 12/4/18 Also #42 & #43
EH
Docket 7
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Tamar Terzian
2:00 PM
From: 11/27/18 Also #46
EH
Docket 194
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. On November 2, 2018, The H.N. and Frances C. Berger Foundation ("Berger Foundation") filed its motion to compel payment of administrative rent or immediate rejection of lease and related relief. On November 13, 2018, Debtor filed its opposition.
The subject of the motion is a lease dated August 15, 2008, for certain nonresidential real property located in Palm Desert, California. According to Berger Foundation, "[p] ursuant to the terms of lease, should the Debtor continue to occupy the premises after August 14, 2018, the lease obligation increases to approximately $91,216.50 per month," [Dkt. No. 194, pg. 2] a doubling of the contractual monthly rental obligation. Berger Foundation requests: (1) that Debtor be compelled to cure the default on the lease or surrender the premises; and (2) allowance of an administrative expense claim in the amount of $3,040.55 per day.
2:00 PM
Debtor’s opposition argues that: (1) the lease cannot be assumed or rejected because the lease expired the day before the petition date; and (2) because the lease expired prepetition, the legal basis for the requested administrative expense claim is invalid.
On November 27, 2018, the Court held a hearing on the matter, and ultimately continued the hearing for supplemental briefing. On December 4, 2018, Debtor filed its supplemental opposition. On December 11, 2018, Berger Foundation filed its supplemental reply.
The critical legal question at issue is whether the operative lease expired prepetition. Berger Foundation relies on 11 U.S.C. § 365(d)(3) as the basis for both its requests, and that provision states:
The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for performance shall not be extended beyond such 60-day period. This subsection shall not be deemed to affect the trustee’s obligations under the provisions of subsection (b) or (f) of the section. Acceptance of any such performance does not constitute waiver or relinquishment of the lessor’s rights under such lease or under this title.
(emphasis added).
2:00 PM
As a general rule, an expired lease is no longer executory, and, therefore, is no longer assumable, if the lease expired prepetition. See, e.g., In re Acorn Invs., 8 B.R. 506, 509-10 (Bankr. S.D. Cal. 1981). Therefore, the Court must determine whether the lease at issue expired prepetition. See Robinson v. Chicago Hous. Auth., 54 F.3d 316, 320 (7th Cir. 1995) ("the federal law allowing ‘unexpired’ leases to be assumed calls for a determination whether a lease has ended under state law."). Here, Debtor argues that the lease expired pre-petition, resulting in a holdover tenancy, in which no privity of contract exists, while Berger Foundation argues that the lease became a month to month tenancy and, therefore, was not expired. While the parties appear to be agree on the operative legal standard, the parties disagree regarding how that standard applies to the facts here
Both parties refer to CAL. CIV. CODE § 1945, which states:
If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.
As a preliminary matter, the Court notes that it appears the above legal provision should not actually be applicable to the instant situation. Specifically, CAL. CIV. CODE
§ 1940(a), (c) states the following:
Except as provided in subdivision (b), this chapter shall apply to all persons who hire dwelling units located within this state included tenants, boarders, lodgers, and others, however denominated.
(c) "Dwelling unit" means a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.
2:00 PM
Here, the lease at issue was a commercial lease which would remove the lease from the purview of § 1945 based upon the plain language of § 1940. Nevertheless, the Court notes that there is ample caselaw, some of which is cited by the parties, in which California courts have applied § 1945 to commercial property. Although it is not clear to this Court why that section is inapplicable to the instant situation, the Court will defer to the state law courts on this issue of state law.
Ultimately, the argument of Berger Foundation boils down to the following:
In this case, after the expiration of the Lease terms (August 14, 2018), Debtor continued to occupy the Premises. Berger continued to accept the Debtor as a tenant and took no action to terminate the Debtor’s leasehold interest in the Premises. To the contrary, as this Court’s record reflects, from the outset, Berger has been focusing on receiving rent payments and, in fact, received post-petition payments of not less than $15,000 as of the date of this Reply. Clearly, pursuant to Civil Code § 1945 and applicable California authority, the Lease converted to a month-to-month tenancy after August 14, 2018.
[Dkt. No. 278, pg. 3]. Debtor’s argument, on the other hand, appears to be that Berger Foundation’s actions in this case simply do not reflect clear consent to Debtor’s continued possession of the premises.
First, there appears to be a timing issue which has not been identified by the parties. The operative lease expired, by its own terms, on August 14, 2018. The instant bankruptcy was filed on August 15, 2018. Therefore, assuming, arguendo, that rent was paid and accepted in a matter which would trigger the statutory presumption in CAL. CIV. CODE § 1945, such event would have occurred after the petition date. City v. Hart, 175 Cal. App. 3d 92, 94 (Cal. Ct. App. 1985) ("The statute provides the landlord’s consent to the holding over is implied if he accepts rent from the tenant after the expiration of the lease. This consent to the holding over must be established before the statutory presumption of the same terms becomes effective."). Therefore,
2:00 PM
the lease at issue would have been, as of the petition date, expired and not assumable. Quite simply, on the record before the Court, it is implausible that Berger Foundation could have undertaken any action in the fraction of the day before the instant bankruptcy filing which would have indicated consent to the creation of a month-to- month tenancy.
Furthermore, outside of the bankruptcy law issues raised above, Berger Foundation’s position does not seem to be compatible with state law. Quite simply, the presumptions outlined in CAL. CIV. CODE § 1945 are analogous to contractual principles in common law. By remaining in possession of the property, and tendering a rental payment, a holdover tenant is making an offer; by accepting such tender, the landlord manifests his assent to such offer. Berger Foundation seems to be positing that the payment of any rent whatsoever, even a single dollar, subsequently accepted by the landlord, results in the extension of the lease terms on the original contractual terms.
Berger Foundation’s argument, however, is inconsistent with fundamental contractual principles, for in the case of a minimal rental payment, it cannot be said that either party has made an offer, accepted by the other party, to renew the original lease terms. At best, the landlord’s implied acquiescence may be construed as an offer, yet the tenant’s tender of a minimal rental payment can only be interpreted as a counter-offer, since such a tender would be materially inconsistent with the terms of the offer. If the landlord accepts this reduced tender, the terms agreed upon must be construed as those set forth in the counter-offer, a principle codified in CAL. CIV. PRO. § 2076:
The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterwards.
See also Taylor v. Taylor, 39 Cal. App. 2d 518, 521 (Cal. Ct. App. 1940) ("It is now settled by these cases that where the tenant tenders, and the landlord accepts, as full payment of the rent, a less monthly rental than that reserved in the lease, he cannot later recover the unpaid balance of the rent reserved.")
2:00 PM
While the above principle, a principle of estoppel, is properly subject to the Court’s consideration of equities, such consideration would simply not change the fact that a reduced monthly rental payment cannot be considered acquiescence to a renewal of the original contractual terms. In the absence of such mutual agreement to be bound to the original terms, there simply cannot be contractual privity.
Finally, the Court notes that the operation of CAL. CIV. CODE § 1945 is to create a rebuttable presumption that the least has been extended. Assuming, arguendo, that the bankruptcy and contract law issues noted above were not present, it appears probable that such a presumption would be rebutted in the instant case. The Court is not aware of any action taken by Debtor that would support a conclusion that Debtor intended to renew the lease on the original terms, and Berger Foundation has made repeated statements which would be incompatible with the presumption in § 1945. For instance, in the instant motion Berger Foundation made the following statements, which are implicitly and explicitly more compatible with a holdover tenancy than a month-to-month tenancy:
-"Since the filing of this case, the Debtor has continued, and continues, to occupy the Premises, yet has failed to pay the rental obligation due and owing." [Dkt. No 194, pg. 2 and 4]
-"Based on the fact that the Debtor remained as a holdover tenant, and pursuant to the terms of the Lease, the rental obligation increases to approximately $91,216.50 per month." [Dkt. No. 194, pg. 4 and 10] (emphasis added).
-"Here, the Debtor has made no payments while continuing to occupy the Premises." [Dkt. No. 194, pg. 6].
For the reasons outlined above, the Court concludes that the lease in question was expired as of the petition date because nothing in the record indicates that Berger Foundation provided consent to continued possession of the premises in the less than one-day period between the expiration of the lease and the instant bankruptcy filing. To the extent that Berger Foundation argues that postpetition acts retroactively
2:00 PM
revived the original lease terms, such retroactive revival would seem to be incompatible with City v. Hart, 175 Cal. App. 3d 92, 94 (Cal. Ct. App. 1985). Furthermore, because Debtor did not remotely act in accordance with the original lease terms, it cannot be said that Debtor actions constituted a renewal of those terms; if any lease was entered into postpetition, it must have been on substantially different terms, which would require notice and a hearing. Additionally, even if the statutory presumption of CAL. CIV. CODE § 1945 were applicable in the instant situation, the Court concludes that such presumption would likely be rebutted based on the fact that Debtor did not act in accordance with the original terms, and based on Berger Foundation’s explicit characterization of Debtor as a holdover tenant.
The Court will not reach Berger Foundation’s contingent request for an administrative claim because the record before the Court would not permit the Court to engage in the analysis required by 11 U.S.C. § 503(b).
The Court is inclined to DENY the motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
2:00 PM
Movant(s):
The H. N. and Frances C. Berger Represented By
David B Golubchik
2:00 PM
From: 8/28/18, 9/25/18, 10/30/18, 11/13/18
Also #45 EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall
2:00 PM
EH
Docket 124
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
Also #47- #50
EH
Docket 154
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
2:00 PM
From: 11/6/18 Also #47- #50
EH
Docket 5
- NONE LISTED -
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
3:00 PM
From: 11/27/18 Also #47- #49
EH
Docket 45
"[I]t is clear that the bankruptcy court has broad discretion over the appointment of professionals." In re Seeburg Prods. Corp., 215 B.R. 175, 178 (Bankr. N.D. Ill. 1997). A violation of the rules of professional responsibility can be sufficient reason to disqualify a proposed counsel from being employed in a case. See, e.g.. In re Universal Bldg. Prods., 486 B.R. 650, 661 (Bankr. D. Del. 2010) (collecting cases).
"An attorney retained by the trustee, or debtor in possession, who assists with the collection of the assets of the estate, must abide by the highest professional standards." In re Wilde Horse Enters., Inc., 136 B.R. 830, 840 (Bankr. C.D. Cal. 1991) "Not honesty alone, but the punctilio of an honor the most sensitive, is the standard of behavior." Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).
"[A] debtor who proposes a sale of all of its assets . . . must fully disclose to the court
3:00 PM
and creditors the relationship between the buyer and seller, as well as the circumstances under which the negotiations have taken place, any marketing efforts, and the factual basis upon which the debtor determined that the price was reasonable." In re Wilde Horse Enters., Inc., 136 B.R. at 842. In re Wilde Horse Enters., Inc., continued on to state:
The Court finds from the evidence before it that Ms. Bernstein either (1) knew of the collusive and undisclosed relationships in this case and knowingly participated in misleading the Court and creditors; or (2) didn’t know of the collusive and undisclosed relationships in this case, and is therefore wholly incompetent because she insisted on remaining ignorant of the facts and law applicable to her case notwithstanding the numerous indicia of questionable conduct along the way. Whether Ms. Bernstein’s acts were wrongful, willfully incompetent or grossly negligent is not important to the determination here.
Under either case, the Court concludes her fees must be denied in their entirely [sic], she should not be permitted to represent debtors in possession before any bankruptcy court, and her conduct in this case must be referred to the State Bar of California for disciplinary proceedings.
Id. at 847.
In the instant case, it appears Applicant failed to act with honesty and candor in relation to the sale of substantially all of the estate’s assets. Specifically, notwithstanding Applicant’s duty to the Court, Applicant failed to disclose a material side deal which was pertinent to the terms of the sale under review, and Applicant even stated at the hearing it was not Applicant’s job to make such disclosure.
Applicant’s conduct in this case has fallen short of complying with the rules of professional conduct and has obstructed the Court’s review of the primary matter in this case, the sale of substantially all of Debtor’s assets. Given that such conduct is clearly adequate to disallow Applicant’s fees in their entirety, the Court is inclined to find that authorizing the employment of Applicant would be a frivolous exercise.
3:00 PM
The Court is inclined to DISALLOW the application.
APPEARANCES REQUIRED.
Debtor(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
Movant(s):
Technology Solutions & Services, Represented By
Leonard M Shulman Melissa Davis Lowe
11:00 AM
Docket 155
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 40,000.00 Trustee Expenses: $ 36.00
Accountant Fees: | $ 5,740.00 |
Accountant Costs: | $ 78.46 |
Court Costs: | $350.00 |
Franchise Tax Board: $1,724.79
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Master Design Inc Represented By Eric M Sasahara
11:00 AM
Trustee(s):
John Y Kim
Steven M Speier (TR) Represented By Robert P Goe Marc C Forsythe Donald Reid
11:00 AM
(Holding date)
From: 10/1/14, 11/5/14, 12/3/14, 12/15/14, 1/28/15, 4/15/15, 7/22/15, 9/23/15, 10/21/15, 11/18/15, 12/16/15, 1/13/16, 3/2/16, 5/4/16, 6/1/16, 9/28/16, 11/16/16,
2/1/17, 2/16/17, 5/3/17, 6/14/17, 6/28/17, 9/20/17, 3/21/18, 6/27/18
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
11:00 AM
EH
Docket 36
On October 8, 2010, Nancy Billow ("Debtor") filed a Chapter 7 voluntary petition. On January 20, 2010, the case was closed without a discharge for failure to file a financial management course certificate. On March 9, 2011, the case was reopened, and, the next day, Debtor received a discharge. On March 22, 2011, the case was closed again.
On February 27, 2016, Debtor filed a motion to reopen the case to allow Debtor to amend her schedules. On March 22, 2016, the case was reopened. Shortly thereafter, Debtor filed amended schedules to schedule, and exempt, a personal injury claim in the amount of $10,000. On May 31, 2016, the case was closed again.
On October 26, 2018, Debtor filed another motion to reopen the case, which was denied for failure to comply with the local rules. Debtor re-filed a new version of the motion on November 1, 2018, and, five days later, the case was reopened. On November 19, 2018, UST filed a motion for the appointment of a Chapter 7 trustee.
11:00 AM
FED. R. BANKR. P. Rule 5010 states:
A case may be reopened on motion of the debtor or other party in interest pursuant to § 350(b) of the Code. In a chapter 7, 12, or 13 case a trustee shall not be appointed by the United States trustee unless the court determines that a trustee is necessary to protect the interests of creditors and the debtor or to insure efficient administration of the case.
Here, UST asserts that the personal injury claim is an asset potentially warranting administration by a Trustee. For that reason, and noting the lack of any opposition to the instant motion, the Court concludes that the appointment of a Chapter 7 trustee is warranted.
The Court is inclined to GRANT the motion, APPOINTING a Chapter 7 trustee.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Nancy Caroline Billow Represented By Michael Shemtoub Marjorie M Johnson
11:00 AM
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 14
- NONE LISTED -
Debtor(s):
Yesenia Ferguson Represented By David L Nelson
Movant(s):
Yesenia Ferguson Represented By David L Nelson
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 131
On May 19, 2017, Michelle Meredith ("Debtor") filed a Chapter 7 voluntary petition. Three days later, Debtor filed an amended Schedule A which identified certain real property located at 102 Tesori Dr., Palm Desert, CA 92211 (the "Property"). Schedule A identified the value of the Property as $450,500. Schedule C claimed an exemption in the Property in the amount of $175,000. Schedule D identified Ocwen Loan Servicing, LLC ("Creditor") as holding a secured claim against the Property in the amount of $312,456. On April 24, 2018, Debtor received a discharge.
On April 26, 2018, Trustee filed a motion to approve compromise. The subject of the compromise motion was the Debtor’s interest in certain family trusts. Pursuant to the compromise, Debtor was to purchase her interest in the family trusts for $140,000,
$104,429.14 of which was received prior to execution of the compromise. The compromise required Debtor to pay the balance within two weeks after entry of the order approving the compromise. In the event that the Trustee did not timely receive the balance of the compromise payment, the compromise provided that Trustee was to
11:00 AM
liquidate the Property, and that Debtor’s homestead exemption would be subordinated to allow for full payment of the compromise amount. The compromise also provided for a weekly penalty in the amount of $300 if Debtor failed to timely tender the balance of the payment. The Court approved the compromise motion on May 21, 2018; Debtor did not timely tender the balance of the payments. On August 3, 2018, the Court approved a stipulation between the parties provided for turnover of the Property.1
On November 28, 2018, Trustee filed a motion for an order: (1) authorizing sale of real property free and clear of liens and interests; (2) approving overbid procedures;
authorizing payment of real estate commissions and costs of sale; (4) finding purchaser is a good faith purchaser; and (5) waiving the Rule 6004 stay.. Trustee proposes to sell the property to Thomas & Brenda Abdelnour for $468,000. Proposed payments from the proceeds include: (1) $2,657.37 for real property taxes; (2)
$359,000 to Creditor to satisfy the first deed of trust; (3) $1,295 for a HOA lien; (4)
$32,760 for costs of sale; (5) $38,570.86 for the estate; and (6) $33,716.78 for Debtor’s homestead exemption.
On December 7, 2018, Creditor filed a limited opposition to the sale motion, asserting that the payoff balance for its claim was $367,782.83.
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary course, after notice and a hearing. A sale pursuant to § 363(b) requires a demonstration that the sale has a valid business justification. In re 240 North Brand Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been
11:00 AM
negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
The motion contains minimal evidence of the Property’s marketing. Nevertheless, given the fact that the sale appears to be a good faith, arms-length transaction, that the sale price is approximately equal to the scheduled value of the Property, and that Trustee has proposed reasonable overbid procedures, the Court concludes that Trustee has articulated an adequate business reason for the sale.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) (2010) states:
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 a legal or equitable proceeding, to accept a money satisfaction of such interest.
Here, the aggregate total value of the liens on the Property is materially less than the
11:00 AM
purchase price. Therefore, Trustee has established that 11 U.S.C. § 363(f)(3) is applicable, and the Court concludes that it is appropriate to authorize the sale free and clear of the first deed trust, the real property taxes, and the HOA lien. Furthermore, pursuant to the compromise motion and the stipulation for turnover of the Property, Debtor has consented to a subordination of her homestead exemption in order to pay the balance of the compromise amount.
14-Day Stay
FED. R. BANKR. P. Rule 6004(h) states: "An order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." The Court deems the absence of objections to be consent to the relief requested, pursuant to Local Rule 9013-(1)(h), and, therefore, will waive the stay of Rule 6004(h).
Miscellaneous Provisions
The Court has reviewed the remainder of Trustee’s miscellaneous requests. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has reviewed the requested Broker compensation of 5% of the sale price (totaling $3,600) and finds such compensation to be reasonable and customary. The Court has reviewed Trustee’s proposed distribution of sale proceeds, and the Court finds that such distribution is reasonable and proper.
Finally, the Court notes that Trustee has not provided any declarations of the purchasers. The Court will require further evidence or testimony from Thomas & Brenda Abdelnour if a good-faith finding pursuant to § 363(m) is sought.
11:00 AM
The Court is inclined to GRANT the motion in its entirety conditioned on adequate evidence being provided to support a good-faith finding pursuant to § 363(m).
Otherwise, the Court is inclined to authorize the sale of the Property free and clear of liens, approve the overbid procedures, approve the Broker’s compensation, determine that the Purchasers are good faith purchasers, waive the 14-day stay under Rule 6004(h), and authorize the proposed payments from the sale proceeds.
APPEARANCES REQUIRED.
Debtor(s):
Michelle Meredith Pro Se
Movant(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan
11:00 AM
From: 8/28/18, 9/25/18, 11/27/18 EH
Docket 5
12/19/2018
All parties have authorization to appear telephonically for the 12/19/2018 Status Conference.
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
Adv#: 6:09-01235 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18, 12/5/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
David Loughnot
2:00 PM
Jonathan A Loeb Jeffrey Rosenfeld
DOES 1 through 100, inclusive Pro Se
Plaintiff(s):
RICHARD K. DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01319 DIAMOND v. Empire Partners, Inc., a California Corporation et
HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
01/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18, 12/5/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb
2:00 PM
Jeffrey Rosenfeld P Sabin Willett
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Larry Day Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Neil M Miller Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
Paul Roman Represented By
Jonathan A Loeb Jeffrey Rosenfeld P Sabin Willett
O'Melveny & Myers, LLP Represented By Howard Steinberg P Sabin Willett
Peter T. Healy Represented By Howard Steinberg P Sabin Willett
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Peter M Bransten
Michael I Gottfried Aleksandra Zimonjic Monica Rieder Cynthia M Cohen
2:00 PM
Trustee(s):
Roye Zur
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:10-01329 DIAMOND v. Empire Partners, Inc., a California Corporation et
(Defendant - Empire Partners, Inc) HOLDING DATE
From: 3/6/13, 6/5/13, 9/11/13, 11/13/13,12/18/13, 2/5/14, 3/12/14, 4/9/14, 4/16/14, 5/21/14, 8/27/14, 8/28/14, 9/10/14, 9/29/14, 11/10/14, 11/19/14,
1/21/15, 1/28/15, 2/19/15, 3/24/15, 5/28/15, 6/23/15, 8/12/15, 9/18/15, 10/6/15,
12/8/15, 1/20/16, 2/18/16, 3/23/16, 4/5/16, 4/13/16, 4/22/16, 6/6/16, 7/25/16,
10/3/16, 11/14/16, 1/23/17, 2/27/17, 4/24/17, 6/26/17, 8/2/17, 10/25/17,
11/27/17, 3/5/18, 6/11/18, 10/24/18, 12/5/18
EH
Docket 1
Debtor(s):
Empire Land, LLC Represented By James Stang Robert M Saunders Michael I Gottfried
------ O'melveny & Myers Dean A Ziehl
Jonathan A Loeb P Sabin Willett
Richard K Diamond (TR) Jeffrey Rosenfeld
Defendant(s):
Empire Partners, Inc., a California Represented By
Jonathan A Loeb
2:00 PM
Jeffrey Rosenfeld
James P Previti Represented By Jonathan A Loeb Jeffrey Rosenfeld
Previti Realty Fund, L.P. Represented By Jonathan A Loeb Jeffrey Rosenfeld
The James Previti Family Trust Represented By Jonathan A Loeb Jeffrey Rosenfeld
Plaintiff(s):
RICHARD K DIAMOND Represented By
Richard S Berger - SUSPENDED - Michael I Gottfried
Aleksandra Zimonjic Monica Rieder
John P Reitman Peter M Bransten Cynthia M Cohen Roye Zur
Trustee(s):
Richard K Diamond (TR) Represented By Michael I Gottfried
Richard S Berger - SUSPENDED - Rodger M Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Monica Rieder
Lisa N Nobles Peter J Gurfein Paul Hastings Roye Zur
2:00 PM
Amy Evans
Best Best & Krieger Franklin C Adams Thomas J Eastmond
2:00 PM
Adv#: 6:17-01286 ASR Constructors Inc a California Corporation et a v. Insurance Company
Complaint in Interpleader Nature of Suit: (02 (Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy))) (Bastian, James)
Trico-Savi Business Park L.P. - Dismissed 12/28/17
Western Alliance Bank, dba Torrey Pines Bank - Dismissed 2/1/18 Gotte Electric, Inc - Dismissed 3/14/18
Ledcor Construction Inc - Dismissed 3/26/18
From: 2/27/18, 10/9/18, 10/16/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Defendant(s):
Insurance Company Of The West Represented By
Jennifer Leland
2:00 PM
David B Shemano Howard J Weg
Employment Development Represented By
Elisa B Wolfe-Donato
Angela Denise McKnight Pro Se
Steven Schonder Pro Se
United states of america Represented By Charles Parker Najah J Shariff
Carlin Law Group APC Represented By Kevin R Carlin
DOES 1 through 10, inclusive Pro Se
Plaintiff(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
Another Meridian Company, LLC Represented By
James C Bastian Jr Melissa Davis Lowe
Inland Machinery, Inc. Represented By James C Bastian Jr
Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18, 10/16/18
Also #12 & #13 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18, 10/16/18
Also #11 & #13 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
From: 3/7/17, 7/11/17, 7/24/17, 9/26/17, 10/24/17, 1/30/18, 2/27/18, 10/9/18, 10/16/18
Also #11 & #12 EH
Docket 630
- NONE LISTED -
Debtor(s):
ASR Constructors Inc a California Represented By
James C Bastian Jr Melissa Davis Lowe
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
#14.00 Motion of Liberty Orthopedic Corporation to Dismiss Adversary Proceeding on First Amended Complaint for Failure to State a Claim upon which Relief can be Granted, to Strike Claims for Relief, or in the Alternative for a more Definite Statement
Also #15 - #17
EH
Docket 108
On October 20, 2013, Douglas J. Roger, MD, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On October 20, 2015, the Chapter 7 trustee filed a complaint against OIC Medical Corporation ("OIC"), Liberty Orthopedic Corporation ("LOC") and Universal Ortopaedic Group ("UOG") (collectively, "Defendants") for avoidance, recovery, and preservation of preferential and fraudulent transfers.
On four occasions, the parties stipulated to a continuance of the initial status conference and an extension of the deadline to file a responsive pleading. On June 20, 2016, Trustee and Revere Financial Corporation ("Revere") filed a joint motion for a temporary stay of the adversary proceeding on the grounds that Trustee and Revere were negotiating a global settlement which would, inter alia, possibly provide for the assignment of the instant adversary proceeding to Revere. On July 12, 2016, the Court entered an order granting the motion, staying the adversary proceeding until August 31, 2016. After the temporary stay of the adversary proceeding expired, the parties
2:00 PM
stipulated to an additional twelve continuances of the initial status conference, each including an extension of the deadline to file a responsive pleading.
On May 14, 2018, Revere purchased the bankruptcy estate’s interest in any claims that the estate owned against Defendants – including the instant adversary proceeding. On May 24, 2018, Revere filed, in federal district court, a motion for an order withdrawing the reference. On August 9, 2018, Judge Otero denied the motion, holding that there was no cause for a permissive withdrawal of the reference.
On October 24, 2018, Defendants filed motions to dismiss for failure to state a claim. In lieu of opposing the motions, Revere filed an amended complaint. The amended complaint included fourteen claims: (a) violation of the receiver order; (b) intentional fraudulent transfer (three claims); (c) conversion; (d) postpetition transfer; (e) preferential transfer; (f) subsequent transferee liability; (g) successor liability; (h) aiding and abetting; (i) agent liability; (j) alter ego; (k) unjust enrichment; (l) money had and received.1 On November 28, 2018, Defendants again filed motions to dismiss for failure to state a claim. On December 5, 2018, Revere filed its opposition.
The complicated factual history of the instant case, while detailed extensively in the amended complaint, warrants brief summarization here. Debtor’s bankruptcy, and the instant adversary proceeding, stem from a promissory note executed on August 21, 2007 by Douglas Roger ("Roger"), and in favor of 1st Centennial Bank. This loan was guaranteed by Debtor, and both Roger and Debtor additionally executed a related commercial security agreement, pledging all assets as collateral for the promissory note. Later, on December 7, 2007, Roger and Debtor guaranteed another promissory note, on behalf of Baleine LP ("Baleine"), and in favor of 1st Centennial Bank. Both of the aforementioned loans had maturity dates exactly one year from their execution dates. At the time of the maturity dates, 1st Centennial Bank had lent $350,000 on the first loan and $500,000 on the second loan. According to the complaint, neither Roger, Debtor, nor Baleine LP or its principal Nicole Ebarb (collectively, the "Roger Defendants") made a payment on the loans. In June 2009, Revere was assigned the
2:00 PM
loans by the Federal Deposit Insurance Corporation.
On December 29, 2009, Revere commenced state court litigation to attempt to collect on the loans. Ultimately, on March 18, 2013, the state court entered a receivership order and appointed Jerry Wang as receiver. As detailed in the complaint, the Roger Defendants failed to comply with the receivership order. After holding a trial on contempt of court, the state court convicted these parties of contempt of court on October 16, 2013, incarcerating Roger and Nicole Ebarb. In the week after these convictions, the instant bankruptcy, as well as multiple related bankruptcies, were filed.
As detailed in pages twelve through twenty-two of the amended complaint, Revere now alleges an extensive scheme by the Roger Defendants to hinder, delay, and defraud Revere. Specifically, Revere alleges that the Roger Defendants utilized and controlled at least sixteen different business entities spread across California, Nevada, Colorado, and Arizona to hide and shield assets. Revere also details nine purported fraudulent transfers of real property in California and Missouri. Finally, Revere identifies a variety of transfers of property by the Roger Defendants for less than equivalent value.
MOTION TO DISMISS STANDARD
FED. R. CIV. P. Rule 12(b)(6), made applicable in adversary proceedings through FED. R. BANKR. P. Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a FED. R. CIV. P. Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The trial court need not, however, accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167
2:00 PM
L.Ed.2d 929 (2007); Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under FED. R. CIV. P. Rule 12(b)(6), a plaintiff must aver in the complaint "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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under FED. R. CIV. P. Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
SUBJECT MATTER JURISDICTION
As noted earlier, shortly after Revere purchased the estate’s interest in claims against Defendants, Revere moved to withdraw the reference. One of Revere’s arguments was that this Court lacked subject matter jurisdiction over the claims. At the time Revere made this argument, the operative complaint only included causes of actions for preferential and fraudulent transfers. Now, Revere has amended the complaint to include state law causes of action.
As a result of the amendment of the complaint, the Court must consider whether it has subject matter jurisdiction over the purely state law causes of action. See, e.g., In re Strawberry, 464 B.R. 443, 447 (Bankr. N.D. Fla. 2012). The amended complaint would result in litigation over non-bankruptcy claims between non-debtor parties.
28 U.S.C. § 157 provides for four categories of cases which the district court may refer to the bankruptcy court: (1) cases under title 11; (2) proceedings arising under title 11; (3) proceedings arising in a case under title 11; and (4) proceedings related to a case under title 11. See, e.g., In re S&M Constructors, Inc., 144 B.R. 855, 858 (Bankr. W.D. Mo. 1992). Additionally, 28 U.S.C. § 157(b) divides matters into core and non-core proceedings.
The first category, cases under title 11, refers to the bankruptcy case commenced by
2:00 PM
the filing of the petition. See, e.g., In re Wood, 825 F.2d 90, 92 (5th Cir. 1987). This category is inapplicable here, as the matter at issue is an adversary complaint.
The second category, proceedings arising under title 11, refers to those actions that are expressly created by title 11. See, e.g., In re Wolverine Radio Co., Inc., 930 F.2d 1132, 1141, n.14 (6th Cir. 1991). This category is inapplicable to the state law causes of action, which would, axiomatically, not be created by title 11.
The third category2, proceedings arising in a case under title 11, refers to claims that, although not created by title 11, would have no existence absent the bankruptcy, such as administrative matters. See, e.g., In re Repository Techs., Inc., 601 F.3d 710, 719 (7th Cir. 2010). This category is inapplicable to the state law causes of action.
The fourth category, proceedings related to a case under title 11, contains two different subsets: (1) causes of action owned by the debtor that become property of the estate under § 541; and (2) suits between third parties which in one way or another affect the administration of the bankruptcy case. Id. The former subset is no longer applicable to the state law causes of action because Revere purchases the claims and, as a result, those claims are no longer property of the estate.
The latter subset, sometimes referred to as related-to jurisdiction, is governed by the
Pacor test. To wit:
The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.
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 . . . and which in any way impacts upon the handling and administration of the bankrupt estate.
2:00 PM
Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir. 1984). The Supreme Court previously acknowledged the prevalence of the Pacor test:
In attempting to strike an appropriate balance, the Third Circuit in Pacor, Inc.
v. Higgins, 743 F.2d 984 (1984), devised the following test for determining the existence of "related to" jurisdiction:
[Excerpt quoted above] . . .
The First, Fourth, Fifth, Sixth, Eight, Ninth, Tenth, and Eleventh Circuits have adopted the Pacor test with little or no variation. The Second and Seventh Circuits, on the other hand, seem to have adopted a slightly different test. But whatever test is used, these cases make clear that bankruptcy courts have no jurisdiction over proceedings that have no effect on the estate of the debtor.
Celotex Corp. v. Edwards, 514 U.S. 300, 308 n.6 (1995) (citations omitted).
It is unclear how the state law claims in the amended complaint could have any conceivable effect on the estate being administered in bankruptcy. These claims were purchased by Revere, a creditor of Debtor, for a fixed sum, and the bankruptcy estate does not appear to have any remaining interest or concern with this adversary proceeding.
While the Court does not appear to have subject matter jurisdiction over the state law claims pursuant to any of the categories of original jurisdiction enumerated above, the Court may have supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(a) states:
2:00 PM
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
The applicability of the above statute to bankruptcy proceedings is not a settled issue: "There is a split of authority on the issue of whether bankruptcy courts have supplemental jurisdiction under § 1367(a). The majority of the cases conclude that bankruptcy courts do not have supplemental jurisdiction. A small minority of cases holds otherwise." GINSBERG & MARTIN ON BANKRUPTCY § 1.03 (5th ed. 2018). The Ninth Circuit Court of Appeals is among that "small minority" which has concluded that bankruptcy courts have supplemental jurisdiction. See In re Sasson, 424 F.3d 864 (9th Cir. 2005) ("Thus, at present, the bankruptcy court’s ‘related to’ jurisdiction also includes the district court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over all other claims that are so related to claims in the action within the court’s original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.").
Here, the Court clearly has original subject matter jurisdiction over the bankruptcy law fraudulent transfer claim, the preferential transfer claim, and the postpetition transfer claim. While neither party has argued the issue, it does not appear to be in dispute that the factual nexus of the state law claims sufficiently overlaps with the federal claims such that all claims form part of the same case or controversy.
Therefore, pursuant to the Ninth Circuit’s interpretation of 28 U.S.C. § 1367(a), the Court possesses subject matter jurisdiction over the complaint.
PREFERENTIAL TRANSFER CLAIM
2:00 PM
The seventh claim for relief in the amended complaint is a preferential transfer claim pursuant to 11 U.S.C. § 547. A claim pursuant to § 547 has six elements: (1) transfer of an interest in property; (2) to or for the benefit of a creditor; (3) on account of an antecedent debt; (4) while the debtor is insolvent; (5) within 90 days of the petition, or within one year of the petition if the recipient of the transfer is an insider; and (6) such transfer enables the creditor to receive more than it would under a hypothetical liquidation. Defendants argue that Revere has failed to adequately plead two of the required elements: (1) that the subject transfer(s) were to or for the benefit of Defendants; and (2) that the transfer was made on account of an antecedent debt.
Defendants cite caselaw which stands for the proposition that a claim for a preferential transfer "must assert the nature and amount of the antecedent debt in order to allege a plausible claim for relief." [Dkt. No. 108, pg. 12]. Revere argues that the amended complaint adequately identifies the subject transfers that were made for the benefit of Defendants. Revere also argues that Defendants’ caselaw, which requires specificity when pleading an antecedent debt, is not the appropriate legal standard.
The Court agrees with Revere that it has adequately alleged that Debtor made preferential transfers to Defendants. Specifically, as noted by Revere in its opposition, paragraph 77 of the amended complaint contains an extensive list of categories of transfers that Revere believes constitute preferential transfers. To require more at the pleading stage would essentially require Revere to provide a roadmap and/or prove its case prior to discovery.
Regarding Defendants’ argument that Revere has not adequately alleged an antecedent debt, the Court notes that if Defendants’ legal standard is appropriate, then it appears Revere has not met that standard. Specifically, the Court notes the amended complaint appears to only refer to Debtor’s "substantial debts" generally, without alleging any specific debt owed to Defendants. Furthermore, paragraph 117 of the amended complaint simply states that "to the extent that [Debtor] . . . owed an antecedent debt to [Defendants]" the transfers at issue were on account of such antecedent debt.
Revere argues that the legal standard identified in In re Caremerica, Inc., 415 B.R. 200 (Bankr. E.D.N.C. 2009) and In re Valley Media, Inc., 288 B.R. 189 (Bankr. D. Del. 2003) is not the appropriate legal standard. The latter case stated the following:
2:00 PM
the following information must be included in a complaint to avoid preferential transfers in order to survive a motion to dismiss: (a) an identification of the nature and amount of each antecedent debt and (b) an identification of each alleged preference transfer by (i) date, (ii) name of debtor/transferor, (iii) name of transferee and (iv) the amount of the transfer.
In re Valley Media, Inc., 288 B.R. at 192.3 It does appear, however, that a majority of the courts that have thoroughly considered the In re Valley Media, Inc. decision have rejected its standard. See, e.g., In re TOUSA, Inc., 442 B.R. 852, 854 (Bankr. S.D. Fla. 2010) ("Valley Media was decided in 2003 and many courts, including a court within its district, declined to follow its pleading requirements as too harsh in light of the Conley v. Gibson regiment. But the Court in Caremerica opined ‘’that the decisions by the Supreme Court in Twombly and Iqbal breathe new life into the pleading requirements implemented in Valley Media for § 547 preference claims. Many courts continue to disagree with Valley Media and Caremerica.") (footnotes omitted); In re NM Holdings Co., LLC, 376 B.R. 194, 204 (Bankr. E.D. Mich. 2007) ("The
heightened pleading requirements imposed by the Valley Media case are inconsistent with the liberal notice-pleading principles under the civil rules."); In re Randall’s Island Family Golf Ctrs., Inc., 290 B.R. 55, 65 (Bankr. S.D.N.Y. 2003) ("[W]hile the information identified by Valley Media might ultimately be necessary to adjudicate the preference claims, it does not follow that it must be pleaded on pain of dismissal."). But see In re Caremerica, Inc., 409 B.R. 737 (Bankr. E.D.N.C. 2009) (noting that "the majority of courts which have addressed the pleading requirements for § 547 claims have required something less than the standard implemented in Valley Media to survive a 12(b)(6) motion to dismiss" but also noting that the Supreme Court implemented "more stringent pleading requirements" when deciding Twombly and Iqbal).
While the Court is not convinced that In re Valley Media, Inc. represents the appropriate pleading standard for a preference action, the Court concludes that the amended complaint does not adequately plead an antecedent debt. Revere has not pointed to a single section of the amended complaint which even contains an unsupported legal conclusion that Debtor owed Defendants an antecedent debt, let alone a section which provides any factual assertions to support such a conclusion. Revere’s general allegation that Debtor owed debt, and the implication in paragraph
2:00 PM
117 that Debtor likely owed a debt to Defendants is, quite simply, inadequate. Again, this conclusion does not amount to a holding that Revere is required to allege an antecedent debt with the level of specificity required in, for example, In re Tweeter Opco, 452 B.R. 150 (Bankr. D. Del. 2011). Revere is, however, required to allege that some sort of antecedent debt exists, and the amended complaint does not contain any such allegation. Therefore, the Court is inclined to dismiss the seventh claim for relief, with leave to amend.
INTENTIONAL FRAUDULENT TRANSFER CLAIMS
The second, third, and fourth claims for relief in the amended complaint are intentional fraudulent transfer claims. Specifically, the second claim for relief is a
§ 548(a) fraudulent transfer claim, the third claim for relief is a CAL. CIV. CODE
§ 3439.07 fraudulent transfer claim, and the fourth claim for relief is a California common law fraudulent transfer claim. As noted by Defendants in the motion to dismiss, it also appears that the eighth through twelfth claims for relief (namely subsequent transferee liability, successor liability, aiding and abetting, agent liability, and alter ego) are additional theories of liability upon which Revere alleges that it can recover the fraudulent transfers identified in the second through fourth claims for relief. As such, it would appear that the eighth through twelfth claims for relief do not have viability independent from the second through fourth claims for relief.
Defendants argue that the amended complaint fails to satisfy the heightened pleading requirements of FED. R. CIV. P. Rule 9 because it fails to plead fraud with particularity. Revere asserts that the amended complaint adequately pleads fraud, and argues that bankruptcy courts relax FED. R. CIV. P. Rule 9 requirements, especially when the material facts are within the defendants’ knowledge.
As noted by Defendants, allegations regarding fraud are generally subject to a heightened pleading standard. FED. R. CIV. P. Rule 9(b), made applicable to adversary proceedings by FED. R. BANKR. P. Rule 7009, requires that a plaintiff must state "with particularity the circumstances constituting fraud. " The Ninth Circuit has provided
guidance for the "with particularity" requirement by stating that to comport with Civil Rule 9(b) the complaint must (1) specify the averred fraudulent representations; (2)
2:00 PM
aver the representations were false when made; (3) identify the speaker; (4) state when and where the statements were made; and (5) state the manner in which the representations were false and misleading. Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir.1991).
Because fraud encompasses a wide variety of circumstances, the requirements of FED.
R. CIV. P. Rule 9(b)—like FED. R. CIV. P. Rule 8(a)(2)—require that a plaintiff should provide all defendants with sufficient information to formulate a response. In Cooper
v. Pickett, 137 F.3d 616, 627 (9th Cir.1997), however, the Ninth Circuit acknowledged that "[e]very transaction alleged to be fraudulent does not have to be detailed in the complaint." Instead, the Rule 9(b) requirement is satisfied where the complaint sets forth an explanation as to why the transactions were false or misleading. See Cooper v. Pickett, 137 F.3d at 625.
Regarding Revere’s argument that a more relaxed pleading standard applies to the instant situation, either as a general rule in bankruptcy courts, or in the more specific situation where the facts are within the defendants’ knowledge, the Court disagree with the former, but agrees with the latter. While ample case law standards for the proposition that the heightened pleading requirements are relaxed by bankruptcy courts in the context of a fraudulent transfer claim, typically such a claim is brought by a trustee. Here, Revere’s status as a creditor which purchased the estate’s interest in the fraudulent transfer claim functionally brings this action outside the context of the underlying bankruptcy proceeding, placing Revere in the same situation as a creditor bringing a state law fraudulent transfer claim in state court. Therefore, the Court concludes that Revere does not appear to be entitled to the relaxing of the FED. R. CIV.
P. Rule 9 pleading requirements which may be afforded a Chapter 7 Trustee.
The Court agrees with Revere, however, that the specific factual situation alleged here (i.e. fraudulent transfers made by Debtor to Defendants and a variety of non-parties) warrants a relaxing of the FED. R. CIV. P Rule 9 pleading requirement. See, e.g., Concha
v. London, 62 F.3d 1493, 1503 ("Rule 9(b) thus requires that plaintiffs specifically plead those facts surrounding alleged acts of fraud to which they can reasonably be expected to have access."); Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) ("This court has held that the general rule that allegations of fraud based on information and belief do not satisfy Rule 9(b) may be relaxed with respect to matters within the opposing party’s knowledge.").
2:00 PM
As noted by Defendants in the motion to dismiss, the elements of an actual fraudulent transfers under § 548(a)(1)(A) are: (1) the debtor transferred an interest in property or incurred a debt; (2) on or within two years before the petition filing date; and (3) with actual intent to hinder, delay, or defraud a present or future creditors. Defendants assert that Revere has failed to plead particularized transfers of property. In light of the preceding paragraph, the Court concludes that the factual allegations set forth in ¶¶ 77 and 79 of the amended complaint do contain factual matter which is, taken as a whole, sufficiently detailed to put Defendants on notice of the claims assert against them.
Nevertheless, the Court notes that ¶¶ 77 and 79 are structured in a rather confusing matter. Specifically, paragraph 77 documents a long list of different categories of action which appear to be presented in that matter to demonstrate an elaborate fraudulent scheme carried out by Debtor and Roger Defendants. In reviewing ¶ 77, however, the Court notes that many of the allegations do not actually relate to Defendants at all. Specifically, six of the thirteen subsections of that paragraph do not mention Defendants at all, but instead refer to transfers purportedly made by Debtor or the Roger Defendants to non-parties. Six of the remaining subsections are phrased in a disjunctive, non-exhausting manner. For example, paragraph (77)(a) reads:
RFC alleges on information and belief that, while Roger, BLP, and DJRI wrongfully possessed the Collateral, Roger, BLP, and DJRI, with the help of, among others, the DJRI Agents, converted the collateral by:
Transferring hundreds of thousands of dollars from the proceeds of the Collateral to Ebarb, OIC, LOC, UOG, other limited partnerships/corporations in which Roger, BLP, and/or DJRI had an interest, and/or other insiders;
The manner in which this allegation is drafted renders it potentially wholly inapplicable to the instant adversary proceeding. Given the repeated use of disjunctive and non-exhaustive lists it is not remotely clear from ¶ 77(a) that the allegation represents a claim Revere has standing to bring in this case (because it is not clear that Debtor was the alleged transferor) or that Defendants are the proper defendants (because it is not clear Defendants are the alleged transferees).
Paragraph 79, on the other hand, contains recitations of alleged fraudulent transfers which are specific to Debtor and Defendants. These recitations, however, are
2:00 PM
completely lacking in the specificity contained in paragraph 77. Nevertheless, given the relaxed pleading standard appropriate in this situation, and the extensive detail recited in the background section, the Court concludes that the amended complaint, when taken as a whole, adequately alleges fraudulent transfer claims.
POSTPETITION TRANSFER CLAIM AND MISCELLANEOUS CALIFORNIA CLAIMS
The sixth claim for relief in the amended complaint is a claim for postpetition transfer pursuant to 11 U.S.C. § 549(a). 11 U.S.C. § 549(d)(1) requires that a § 549 claim be brought within two years of the date of the transfer to be avoided. The California Claims Defendants argue that the sixth claim for relief does not relate back to the filing of the original complaint and, as a result, may be time-barred. Revere argues that: (a) the statute of limitations is an affirmative defense and Defendants have not demonstrated that the postpetition transfer claim is time barred; and (b) the postpetition transfer claim relates back to the original complaint.
The Court agrees with Revere that the fact that the claim may be time-barred is inadequate to support dismissal at the pleading stage. As has been stated by the Ninth Circuit:
A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when "the running of the statute is apparent on the face of the complaint." Huyhn v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). "A complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Supermail Cargo, Inc., U.S., 68 F.3d 1204, 1206 (9th Cir. 1995).
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). Here, Defendants’ argument amounts to reversing the burden of proof on the affirmative defense. Defendants’ assertion that the sixth claim may be time-barred is not adequate to support dismissal.
The fifth, thirteenth, and fourteenth claims for relief are conversion, unjust enrichment, and money had and received, respectively. Regarding conversion, it appears that Defendants are arguing that the conversion claim does not relate back to the original complaint. Yet, for the reasons stated in the preceding paragraph, the mere
2:00 PM
fact that the conversion claim may be time-barred is inadequate to support dismissal at the pleading stage.
Defendants argue that unjust enrichment is not a valid cause of action. Revere argues that unjust enrichment is a valid cause of action. In California, there is a split of authority as to whether unjust enrichment can operate as a cause of action or is merely a theory of liability. Compare Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723, 726 (Cal. Ct. App. 2000) and Peterson v. Cellco, 164 Cal. App. 4th 1583 (Cal. Ct. App.
2008) (unjust enrichment is a cause of action) with Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779 (Cal. Ct. App. 2003) and Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350 (Cal. Ct. App. 2010). While Revere argues that the California Supreme Court, in Ghirardo v. Antonioli, 14 Cal. 4th 39 (Cal. 1996), concluded unjust enrichment was a cause of action, the cited case does not stand for that proposition.
The Ninth Circuit recently weighed in on the caselaw split, stating that "in California, there is not a standalone cause of action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’" Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 762 (9th Cir. 2015). The Ninth Circuit additionally stated that "[w]hen a plaintiff alleges unjust enrichment, a court may construe the cause of action as a quasi-contract claim seeking restitution." Id. Here, it does not appear that such a construction would be compatible with the facts as pled in the amended complaint. In accordance with the recent Ninth Circuit ruling, and the California trend to not recognize unjust enrichment as a stand- alone cause of action, the Court is inclined to dismiss the thirteenth claim for relief, with leave to amend.
Regarding money had and received, Defendants’ argument is somewhat unclear, although it appears to amount to a contention that Revere has not adequately pled that Defendants were the recipients of any transfers of property or funds. For the reasons stated in the fraudulent transfer section, and given that this claim is not subject to the heightened pleading requirement of FED. R. CIV. P. Rule 9, the Court rejects Defendants’ argument.
VIOLATION OF RECEIVERSHIP ORDER CLAIM
The first claim for relief in the amended complaint is for violation of the receivership order. Defendants’ argument appears to be that Revere lacks standing to bring this claim. Specifically, Defendants note that "Plaintiff brings its FAC as successor to, and
2:00 PM
in the name of Arturo Cisneros, the Chapter 7 trustee." [Dkt. No. 108, pg. 18]. Revere argues that "Whether the claim for violation of the receivership order belongs to RFS personally or belonged to the DJRI Trustee is of no moment – RFS as both creditor and as successor-in-interest to all claims by the DJRI Trustee against the OIC Defendants has standing in one capacity or the other." [Dkt. No. 108, pg. 30].
The Court agrees with Revere – although the confusion seems to have been caused by Revere’s drafting. Quite simply, it is legally incorrect for Revere to state that it is bringing these claims in the name of the Chapter 7 Trustee. While that may be the situation if the claims were assigned to a liquidating trust, with Revere as liquidating trustee, such situation did not occur. Instead Revere purchased the claims in its own name; neither the Chapter 7 Trustee nor the bankruptcy estate has any interest in these claims, nor would it have standing to prosecute them. Therefore, while it appears uncontested that Revere has standing to prosecute the first claim for relief as a creditor of Debtor, the Court notes that it does not appear Revere has properly and clearly identified the plaintiff in this case.
Finally, the Court notes that there appears to be confusion regarding the amended complaint’s alter ego claim. That claim is identified as the twelfth claim for relief in the amended complaint’s caption, but is inaccurately identified as the tenth claim for relief in the body of the amended complaint. In Defendants’ motion to dismiss, Defendants characterize the alter ego claim as a theory of recovery related to the fraudulent transfer claims. Then, despite omitting the section from the table of contents, Defendants additionally present an argument that "alter ego" should be dismissed because it is not a stand-alone cause of action. Given that the recitations in the alter ego claim parallel the recitations in the eighth through eleventh causes for action (which are simply theories of recovery predicated on the fraudulent transfer claims) the Court will treat the alter ego claim in the same fashion and not evaluate it as a stand-alone cause of action.
The Court is inclined to GRANT the motion to the extent of dismissing the seventh claim for relief (preferential transfer) and thirteenth claim for relief (unjust enrichment) without prejudice and DENY the remainder of the motion. The Court is inclined to DENY Defendants’ alternative request for a more definite statement for
2:00 PM
failure to comply with the procedural requirements of FED. R. CIV. P. Rule 12(e). Nevertheless, the Court notes that the following issues may need clarification (1) the proper plaintiff in this action; (2) the identity of the relevant actors in each component of the fraudulent scheme relevant in this adversary proceeding; and (3) which "claims" are causes of action and which are merely theories of liability or recovery related to the fraudulent transfer claims.
APPEARANCES REQUIRED.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Movant(s):
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays
2:00 PM
Trustee(s):
Chad V Haes
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
#15.00 Motion of OIC Medical Corporation to Dismiss Adversary Proceeding on First Amended Complaint for Failure to State a Claim upon which Relief can be Granted, to Stike Claims forRelief, or in the Alternative for a more Definite Statement
Also #14 - #17
EH
Docket 109
See tentative ruling for #14.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
Movant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
#16.00 Motion of Universal Orthopedic Corporation to Dismiss Adversary Proceeding on First Amended Complaint for Failure to State a Claim upon which Relief can be Granted, to Strike Claims for Relief, or in the Alternative for a more Definite Statement
Also #14 - #17
EH
Docket 110
See tentative ruling for #14.
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
2:00 PM
Movant(s):
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Cisneros v. OIC MEDICAL CORPORATION, a California corporation
A. Cisneros against OIC MEDICAL CORPORATION, a California corporation, LIBERTY ORTHOPEDIC CORPORATION, a California corporation, UNIVERSAL ORTHOPAEDIC GROUP, a California corporation. (Charge To Estate $350). for Avoidance, Recovery, and Preservation of Preferential and Fraudulent Transfers (with Adversary Proceeding Cover Sheet) Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 12/30/15, 2/24/16, 4/13/16, 6/22/16, 8/24/16, 11/2/16, 2/1/17, 3/8/17, 7/12/17, 9/13/17, 11/15/17, 2/14/18, 5/16/18, 7/25/18, 8/22/18, 10/31/18,
11/14/18, 12/12/18
Also #14 - #16
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
2:00 PM
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(s):
A. Cisneros Represented By
D Edward Hays Chad V Haes
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01199 Revere Financial Corporation v. Bank of Southern California, N.A.
EH
Docket 118
On July 29, 2016, Revere Financial Corporation ("Revere"), as liquidating trustee for the estate of Douglas Jay Roger, filed an adversary complaint against Bank of Southern California ("BSC") seeking recovery of various transfers alleged to be fraudulent transfers and/or preferences (the "BSC Action"). The BSC Action was dismissed with prejudice on September 7, 2017. However, following successful appeal by Revere, the dismissal was vacated and the case was reinstated on June 4, 2018. On August 28, 2018, the Court entered a scheduling order setting a discovery cut-off date of January 30, 2019.
On December 10, 2018, Revere filed a Motion to Extend the Discovery Cut- Off ("Motion"), which the Court permitted to be set on shortened time by order entered on December 11, 2018. BSC filed its Objection to the Motion on December 14, 2018. Revere replied to BSC on December 18, 2018.
Every court has the inherent power to "control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). As part of this inherent power, courts are "given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed
2:00 PM
unless they evidence a clear abuse of discretion." C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). A court may, therefore, modify a scheduling order, including continuing the discovery cut-off date, for good cause.
Fed. R. Civ. Proc. 16(b)(4).
The Court is cognizant that Revere is managing litigation related to various related Roger adversaries on multiple fronts, has not delayed in seeking recovery, and otherwise presented sufficient rationale so as to justify a short extension of discovery under the circumstances. The Court finds that Revere’s request for a 90-day extension to April 30, 2019, is reasonable under the circumstances.
Based on the foregoing, the Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw
Defendant(s):
Bank of Southern California, N.A. Represented By
Kathryn M.S. Catherwood
Movant(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
Plaintiff(s):
Revere Financial Corporation Represented By Franklin R Fraley Jr
2:00 PM
Trustee(s):
Helen R. Frazer (TR) Represented By Laurel R Zaeske Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
From: 3/28/18, 6/13/18, 7/25/18, 10/24/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
EH
Docket 34
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Mina Farah Represented By
Wayne W Suojanen
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
EH
Docket 32
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland
Bernadette Shenouda Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Anis Khalil Represented By
2:00 PM
Trustee(s):
Wayne W Suojanen
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
HOLDING DATE
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18, 7/11/18, 10/24/18
EH
Docket 44
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Edward T Weber
Joint Debtor(s):
Anne Louise Goodman Represented By Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
(Holding Date)
From: 8/2/18, 10/24/18 Also #24
EH
Docket 97
08/02/2018
BACKGROUND
On September 12, 2016, Douglas and Anne Goodman (collectively, "Debtors" or "Defendants") filed their petition for chapter 13 relief.
On November 11, 2016, Mark and Natasha Reynoso (collectively, "Plaintiffs") filed a complaint seeking determination of the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) (the "Complaint"). Specifically, Plaintiffs allege that in 2015, they purchased real property located at 1656 West Lisbon Street in Upland, CA (the "Property") from the Debtors, and that a sale was consummated on the misrepresentations of the Debtors’ agent, Theresa Mann, that the Property was 3,231 square feet while Plaintiffs assert that the Property is actually 2,713 square feet (or a difference of 518 square feet). Plaintiffs also assert that they were led to believe that a water leak in the upstairs bathroom had been repaired. Plaintiffs allege that the Debtors knew or should have known that their agent was making false and misleading representations to Plaintiffs.
On February 3, 2017, the Court entered an order granting Defendants first motion to dismiss the Complaint, with leave to amend. A First Amended Complaint (the "FAC") was filed on February 28, 2017. On April 19, 2017, the Plaintiffs filed a First Amended Complaint captioned "Corrected" which indicated it had been
2:00 PM
corrected for typographical errors. (the "Corrected Complaint"). The Court denied Defendants’ second motion to dismiss at a hearing on May 4, 2017. On June 5, 2017, the Defendants filed their Answer to the FAC ("Answer").
On March 9, 2018, the Defendants moved to dismiss the April 19, 2018, complaint. The Court granted the motion to dismiss the April 19, 2018, complaint with leave to amend. A second amended complaint was then filed on May 23, 2018 (the "SAC"). [Note: there is a dispute regarding whether the operative complaint is a second or third amended complaint due to the filing of the "corrected complaint" indicated above. For purposes of this hearing, the operative complaint is Docket No. 93]. Defendants now move to dismiss the SAC. No opposition has been filed by the Plaintiffs.
DISCUSSION
As a threshold matter, the Motion seeks relief pursuant to Rule 12(b)(6).
However, given that the Defendants have filed an Answer to the FAC, the Court shall construe the Motion as a motion under Rule 12(c), a motion for judgment on the pleadings.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Knappenberger v. City of Phx., 566 F.3d 936, 939 (9th Cir.2009) (quoting Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995)).
On a Rule 12(c) motion, the court must accept as true all the material facts alleged in the complaint and must draw all reasonable inferences in favor of the non- moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). In ruling on a Rule 12(c) motion, the court may not consider extrinsic evidence unless the motion is converted into a Rule 56 summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989) (citing Fed.R.Civ.P. 12(c); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982)). However, a court may consider facts that are contained in materials of which the court may take judicial notice when considering a motion for judgment on the pleadings. Heliotrope
2:00 PM
Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir.1999) (quoting Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994)).
The crux of Defendants’ argument for dismissal of the FAC is that Plaintiffs have not set forth the basis for a money judgment under state law. In the Court’s tentative ruling on the motion to dismiss the FAC, the Court stated the following:
The Ninth Circuit has held that a bankruptcy court may enter a monetary judgment on a disputed state law fraud claim in the course of determining that the debt is nondischargeable. Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015 (9th Cir.1997). Shawn Deitz v. Wayne Ford, Patricia Ford (In re Wayne Ford, Patricia Ford), 469 B.R. 11, 21 (9th Cir. BAP 2012), aff'd, 760 F.3d 1038 (9th Cir. 2014). Here, although the Complaint is not explicit regarding the state law causes of action at issue, it appears implicit in the allegations that the Plaintiffs seek a monetary judgment as to a fraud or misrepresentation claim.
Nonetheless, Plaintiffs should not have to guess at the state law basis of the debt for a money judgment.
Here, the SAC has added bases for calculation of damages under state law but has still not set forth the state law basis for the monetary judgment.
Thus, the Plaintiffs have still not addressed the concerns raised by the Court and Defendants that they do not have sufficient notice of the basis for a monetary judgment such that the Defendants can adequately defend themselves in the action.
TENTATIVE RULING
Based on the foregoing, including the Plaintiffs failure to file opposition to the Motion to Dismiss which can be deemed as consent to the granting of the Motion pursuant to LBR 9013-1(h), the Court is inclined to GRANT the Motion dismissing the SAC with leave to amend, in order to provide the Plaintiffs with an opportunity to set forth the specific bases for monetary damages under state law such that the litigation can proceed.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Douglas Edward Goodman Represented By Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Edward T Weber
Movant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Pro Se
Douglas Edward Goodman Pro Se
Anne Louise Goodman Pro Se
Douglas Edward Goodman Represented By Edward T Weber
Douglas Edward Goodman Pro Se
2:00 PM
Anne Louise Goodman Pro Se
Anne Louise Goodman Represented By Edward T Weber
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:16-01277 Reynoso v. Goodman et al
(Holding Date)
From: 5/4/17, 8/24/17, 8/31/17, 9/14/17, 11/9/17, 12/20/17, 2/28/18, 7/11/18, 10/24/18
Also #23 EH
Docket 13
- NONE LISTED -
Debtor(s):
Douglas Edward Goodman Represented By Edward T Weber
Defendant(s):
Douglas Edward Goodman Represented By Edward T Weber
Anne Louise Goodman Represented By Edward T Weber
Theresa Mann Represented By Andrew L Leff
2:00 PM
Jose Pastora Represented By
Andrew L Leff
Joint Debtor(s):
Anne Louise Goodman Represented By Edward T Weber
Plaintiff(s):
Mark & Natasha Reynoso Represented By Michael J Hemming
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01161 Simons (TR) v. Thompson
$350.00). Nature of Suit: (31 (Approval of sale of property of estate and of a co- owner - 363(h))) (Simons (TR), Larry)
From: 10/17/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Thomas Franklin Shea Represented By Richard J Hassen
Defendant(s):
Joseph Edward Thompson Pro Se
Joint Debtor(s):
Marta Rose Shea Represented By Richard J Hassen
Plaintiff(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Represented By Wesley H Avery
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18, 5/16/18, 7/25/18 Also #27 & #28
EH
Docket 49
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By
2:00 PM
Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 4/25/18, 5/16/18, 7/25/18 Also #26 & #28
EH
Docket 42
On April 12, 2016, Jose Hernandez ("Debtor") filed a Chapter 7 voluntary petition. On July 7, 2016, the Chapter 7 Trustee ("Plaintiff") filed a complaint against Carolina Navarro ("Defendant") seeking the avoidance and recovery of a fraudulent transfer.
After default was entered against Defendant, on October 14, 2016, the parties stipulated to set aside default, and, that same day, Defendant filed her answer. On March 1, 2018, Plaintiff filed a motion for summary judgment. On April 4, 2018, Defendant filed her opposition.
Plaintiff alleges that on July 21, 2014, Debtor transferred certain real property located at 3510 Duffy St., San Bernardino, CA 92407 to Defendant for no consideration and that Debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer. Defendant received a Chapter 7 discharge on January 26, 2018.
2:00 PM
Violation of Discharge Injunction
As a preliminary matter, Defendant argues that because she obtained her own discharge in January, the continuation of this proceeding violates her discharge injunction. Specifically, Defendant argues that her discharge extinguishes her personal liability and that Trustee’s complaint seeks avoidance of the transfer and recovery of the property or its value. Defendant’s opposition states:
Notwithstanding his heightened knowledge of the provisions of the Bankruptcy Code and bankruptcy jurisprudence, the Trustee has pursued the same claims and remedies against Defendant after her discharge was granted, relieving her of any personal liability on account of the Trustee’s alleged claims and barring the Trustee from obtaining relief in this case. For example, the Trustee seeks judgment on his Fifth Claim, which as pled in the Complaint, alleges that "Plaintiff is entitled to recovery the Subject Property or its value from the Defendant Pursuant to § 550(a)."
[Dkt. No. 46, pg. 12-13].
Defendant’s argument is misleading and lacks merit. Regardless of the relief requested in the complaint, which was filed before Defendant obtained a discharge, Plaintiff’s motion for summary judgment has dropped the reference to "or its value" and only seeks recovery of the subject property. Nothing in the motion for summary judgment seeks to enforce a personal liability of the Defendant. Therefore, the Court rejects Defendant’s argument.
Motion for Summary Judgment
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. Rule 56(c) (incorporated by FED. R.
2:00 PM
BANKR. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See id. at 324; see also FED. R. CIV. P. Rule 56(e). The court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See id.
If the moving party meets its initial burden, the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. The non-moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material fact…." Matsushita Electrical Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Plaintiff requests summary judgment on the second claim for relief (avoidance of constructively fraudulent transfer) and the fifth claim for relief (recovery of avoided transfer). 11 U.S.C. § 548(a)(1)(B) states, in pertinent part:
(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily --
(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such
2:00 PM
transfer or obligation
Defendant does not dispute that there was a transfer of an interest of property within 2 years before the petition date. Defendant does, however, dispute the satisfaction of the other two elements, arguing that Defendant received reasonably equivalent value and was not rendered insolvent by the subject transfer. See generally In re Fruehauf Trailer Corp., 444 F.3d 203, 210 (3rd Cir. 2006); In re Southern Textile Knitters, 65 Fed. Appx. 426, 436 (4th Cir. 2003) (outlining elements of § 548(a)(1)(B) action).
Regarding the requirement that reasonably equivalent value have been provided, Plaintiff asserts that the grant deed reflects that the transfer was a "bonafide gift and the grantor received nothing in return." In her opposition, Defendant argues that the language of the grant deed is inaccurate, and that she offered value in a variety of ways. Specifically, Defendant contends that she was a co-signer for the refinancing and "also provided consideration by contributing her wages to pay for household expenses and by providing domestic labor including cooking, cleaning, child-rearing, and running the parties’ household." [Dkt. No. 46, pg. 17, lines 7-9]. With regard to the language on the grant deed, Defendant states that:
The Grant Deed was not prepared by Debtor or Defendant. Debtor and Defendant correctly advised the loan officer who handled the refinancing that Defendant was not paying cash to Debtor for her one-half interest. For this reason, Debtor and Defendant believe the loan officer or escrow agent who prepared the Grant Deed noted on the document that the Transfer was a gift.
[Dkt. No. 46, pg. 5, lines 1-5].
In the reply, Plaintiff contends that "[a]fter first stating that it was a gift and nothing was received, the Debtor and Defendant should be estopped from now claiming it was not a gift and reasonably equivalent value was provided for the Subject Transfer." [Dkt. No. 51, pg. 4, lines 13-15].
The Court concludes that the parol evidence rule applies here to preclude the consideration of evidence which contradicts the plain and unambiguous language of the deed. See generally In re Khalil, 2014 WL 1725811 at *6-11 (Bankr. C.D. Cal. 2014) (collecting cases providing comprehensive analysis of the parol evidence rule in the context of grant deeds deed). As was noted in Khalil:
If there is no ambiguity on the face of the document, and no reference to
2:00 PM
information or terms in the recorded document or from the circumstances of
the conveyance that would lead a bona fide purchaser to inquire as to the intent and meaning of the instrument, then the bona fide purchaser is entitled to rely on the written record and is not charged with or bound by unstated meanings or by secret or collateral agreements that add to or alter the written record.
Id. at *10. While the above quotation is in the context of ownership interests in real property, rather than the nature of consideration, or lack thereof, in connection with a grant deed, the same underlying principle is applicable: "third parties, including the trustee and the estate’s creditors, must be able to rely on the terms of recorded deed." Id. at *11. See also id. at *10 ("As a general rule, when any ambiguity is not evident from the face of the instrument (i.e., a "latent" ambiguity), the deed must be construed solely from an analysis of the plain meaning of the document itself, and extrinsic evidence is not admissible."); Laux v. Freed, 53 Cal. 2d. 512, 523 (Cal. 1960) ("[I]f the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms.").
Regarding the insolvency requirement, Plaintiff first argues that given the absence of reasonably equivalent value, Debtor’s insolvency as a result of the transfer should be assumed; Plaintiff cites United States v. Mazzeo, 245 B.R. 435, 441 (E.D.N.Y. 1999). The Court declines to make such a presumption. The case cited by Plaintiff, and the related case law, deals with fraudulent transfer provisions under New York state law. See, e.g., Kim v. Ji Sung Yoo, 2017 WL 4382078 (S.D.N.Y. 2017) (noting presumption and collecting cases). No such burden shifting framework, however, exists under the Bankruptcy Code. See 5 COLLIER’S ON BANKRUPTCY ¶ 548.11[2] (16th ed. 2017) ("Under state law and the UFTA (and presumably the UVTA), a well- recognized exception permits the court to infer a proscribed financial state once the plaintiff has shown a lack of fair consideration or a lack of reasonably equivalent value. This shift should not apply to cases brought under section 548.") (footnotes omitted); see also In re Galbreath, 286 B.R. 185, 197 (Bankr. S.D. Ga. 2002) ("The burden for proving constructive fraud falls on the trustee who must show by a preponderance of the evidence that all requirements set out in § 548(a)(1)(B) have been met.")
Plaintiff next argues that Debtor’s insolvency can be established through a review of the schedules. Essentially, Plaintiff argues that the schedules indicate that Debtor was insolvent as of the petition date, and that the Court can work backwards to conclude that Debtor was insolvent on the date of the transfer. As one bankruptcy court has stated:
2:00 PM
Since insolvency at a given point in time is often difficult to demonstrate by direct proof, courts permit the trustee to show that the debtor was insolvent at one point in time and then prove that the same condition existed at the time of the subject transfer. This method of proof has been labeled "retrojection," but
it applies equally to situations in which the trustee starts at a point in time prior to the transfer. When the trustee chooses to use this method of proof it is essential that the trustee be able to show the absence of any substantial or radical changes in the assets or liabilities of the bankruptcy between the retrojection dates.
In re R. Purbeck & Assocs., Ltd., 27 B.R. 953, 955 (Bankr. D. Conn. 1983) (footnotes and quotation omitted). Plaintiff argues that the schedules reflect that Debtor had no meaningful unexempt assets as of the petition date while much of Debtor’s unsecured debt was identified as having been incurred prior to the date of the transfer.
Furthermore, Debtor’s statement of financial affairs does not disclose any significant transfers of property between the date of the subject transfer and the petition date.
In Defendant’s opposition, she appears to contend that Debtor’s outstanding debt on the date of the subject transfer was $210,282 and that Debtor’s assets were valued at approximately $224,000. The Court notes that these assertions do not demonstrate solvency – they demonstrate insolvency as that term is defined in the Code. 11 U.S.C.
§ 101(32)(A)(ii) exempts from the solvency requirement property which may be exempt under § 522. The assets listed in Debtor’s schedules, and in Defendant’s opposition, all appear to be assets capable of being exempted under § 522, thereby rendering Defendant statutorily insolvent. Even ignoring that fact, however, Defendant’s opposition indicates that Debtor had $53,186 in equity in the property; transferring a 50% interest in the property would have rendered Debtor insolvent even before removing property which can be exempted. As a result, the Court concludes that Plaintiff has demonstrated there is no genuine dispute regarding Debtor’s insolvency on the date of the subject transfer.
Recovery
Plaintiff also seeks recovery of the subject property pursuant to 11 U.S.C. § 550. 11
U.S.C. § 550(a)(1) states:
(a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title,
2:00 PM
the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from –
the initial transferee of such transfer or the entity for whose benefit such transfer was made
Defendant opposes the requested recovery, although the legal basis for the opposition is less than clear. Defendant argues that "annulment of the Transfer would have the effect of returning the Property to a single ownership since Debtor was the sole owner. Therefore, recovery of the Transfer is unnecessary and provides no benefit to the estate." [Dkt. No. 46, pg. 18, lines 15-17]. The Court’s interpretation of the Plaintiff’s request is that Plaintiff is requesting an order indicating that the Property has retained to single ownership (the bankruptcy estate). Therefore, it does not appear there is really any legal dispute here, semantical differences aside.
Withdrawal of Admissions
In light of the foregoing, the Court is inclined to deny Defendant’s motion to withdraw admissions as moot. The Court need not rely on admissions by default in resolving the instant motion for summary judgment.
The Court is inclined to GRANT the motion for summary judgment, avoiding the transfer as constructively fraudulent and permitting Trustee’s recovery of such transfer. Defendant’s motion to withdrawn admissions is DENIED as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
2:00 PM
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Movant(s):
Larry D Simons Represented By Frank X Ruggier
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
2:00 PM
Adv#: 6:16-01176 Simons v. Navarro
From: 9/7/16, 11/9/16, 1/11/17, 3/8/17, 4/12/17, 5/17/17, 6/7/17, 7/26/17, 9/27/17, 11/29/17, 1/10/18, 4/25/18, 5/16/18, 7/25/18
Also #26 & #27 EH
Docket 1
- NONE LISTED -
Debtor(s):
Jose Antonio Hernandez Represented By
Jessica De Anda Leon
Defendant(s):
Carolina Villalobos Navarro Represented By Christopher J Langley
Plaintiff(s):
Larry D Simons Represented By Frank X Ruggier
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier
11:00 AM
Adv#: 6:18-01181 Tarhuni v. Lakeview Loan Servicing LLC et al
From: 11/29/18 EH
Docket 1
- NONE LISTED -
Debtor(s):
Melanie Tarhuni Pro Se
Defendant(s):
Lakeview Loan Servicing LLC Represented By Jonathan C Cahill
Loancare LLC Represented By Jonathan C Cahill
Plaintiff(s):
Melanie Tarhuni Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 7/25/18
From: 10/25/18, 12/6/18 EH
Docket 187
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
6:17-ap-01187 MH, which is a Conflict of Interest; (3) Request for an Accounting and Claim Numbers on any Unsecured Debts Rule 71 in Adversary Proceeding Case No 6:17-ap-01187 MH and Chapter 13 Case No 6:16-bk-16720 MH; (4) Memorandum of Points and Authorities; (5) Declaration of Luevina Henry
From: 10/25/18, 12/6/18 Also #4
EH
Docket 110
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
11:00 AM
Tavares Pro Se
Movant(s):
Luevina Henry Pro Se
Plaintiff(s):
Luevina Henry Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:17-01187 Henry v. Real Time Resolutions Inc et al
From: 11/16/17, 11/1/18, 12/20/18 Also #3
EH
Docket 1
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Defendant(s):
Real Time Resolutions Inc Represented By Renee M Parker
THE BANK OF NEW YORK Represented By Renee M Parker
Riverside County Sheriff Represented By Ronak N Patel
Tavares Pro Se
Plaintiff(s):
Luevina Henry Pro Se
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 70
- NONE LISTED -
Debtor(s):
Michael Douglas Guerino Represented By Joseph M Hoats
Joint Debtor(s):
Xochitl Rodriguez Guerino Represented By Joseph M Hoats
Movant(s):
Michael Douglas Guerino Represented By Joseph M Hoats Joseph M Hoats Joseph M Hoats
Xochitl Rodriguez Guerino Represented By Joseph M Hoats Joseph M Hoats Joseph M Hoats
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 126
- NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Movant(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 116
- NONE LISTED -
Debtor(s):
Scott Patrick Williams Represented By Summer M Shaw Jenny L Doling
Joint Debtor(s):
Lisa Ann Williams Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/18/18, 11/8/18, 11/29/18 EH
Docket 33
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Movant(s):
Jude Okwor Represented By
Javier H Castillo Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/15/18 EH
Docket 27
- NONE LISTED -
Debtor(s):
Karen Jannette Rimola Represented By Norma Duenas
Movant(s):
Karen Jannette Rimola Represented By Norma Duenas Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Mark Irwin Barule Represented By Summer M Shaw Jenny L Doling
Movant(s):
Mark Irwin Barule Represented By Summer M Shaw Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Tafoya Represented By Clay E Presley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alisha Shanea Reese Represented By Suzette Douglas
Trustee(s):
Robert Whitmore (TR) Represented By Caroline Djang
11:00 AM
EH
Docket 26
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Scott Kosner
Joint Debtor(s):
Kenya Lashawn Britt Represented By Scott Kosner
Movant(s):
Adam Brian Britt Represented By Scott Kosner
Kenya Lashawn Britt Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 26
The bar date for filing claims in the case of Rita and Steven Pappalardo (collectively, "Debtors") was November 6, 2018. On November 7, 2018, Claim No. 17 was filed by Citibank, N.A. The late filing of the claim prompted Debtors to file the instant Objection to Claim. The proof of service indicates that service on Citibank was consistent with FRBP 7004 and Citibank has failed to file opposition. Based on Citibank’s failure to file opposition or to otherwise seek an order authorizing the late filing of the claim, the Court is inclined to SUSTAIN the Objection.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Rita Denise Pappalardo Represented By Aaron Lloyd
Joint Debtor(s):
Steven Joseph Pappalardo Represented By Aaron Lloyd
Movant(s):
Rita Denise Pappalardo Represented By Aaron Lloyd Aaron Lloyd
Steven Joseph Pappalardo Represented By
11:00 AM
Trustee(s):
Aaron Lloyd Aaron Lloyd
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 65
- NONE LISTED -
Debtor(s):
Sean Kirkpatrick Represented By Javier H Castillo
Movant(s):
Sean Kirkpatrick Represented By Javier H Castillo Javier H Castillo Javier H Castillo
Trustee(s):
Rod (MJ) Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Antonio Velasco Represented By Danny K Agai
Joint Debtor(s):
Lilian Micaela Velasco Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Romero Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeffrey Scott Weedon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Antonio Contreras Represented By A Mina Tran
Joint Debtor(s):
Mayra Lorena Contreras Represented By A Mina Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Arturo Valenzuela Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shahbaz Sarfraz Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Engracia Alcala Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marie Lynne Trejo Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Heather Gibson Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nicolas Canello Represented By Terrence Fantauzzi
Joint Debtor(s):
Nidia Y. Canello Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Manuel Gaxiola Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Diana L Montoya Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jill Cathleen Watson Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Roy Morales Represented By
Robert W Ripley
Joint Debtor(s):
Lalani Dee Morales Represented By Robert W Ripley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jon Patrick Park Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Heinrich Franz Brinkmann Represented By Stephen H Darrow
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Marie Silva Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steven Michel McCann Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Vadany Sophan Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Humberto Camacho Jr Represented By Christian N. Cooper
Joint Debtor(s):
Sarah Camacho Represented By Christian N. Cooper
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Peter W Fournier Represented By Laleh Ensafi
Joint Debtor(s):
Leslie Fournier Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose L. Ferrer Represented By
Antonio John Ibarra
Joint Debtor(s):
Maria Ferrer Represented By
Antonio John Ibarra
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Lee Minkalis Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lawrence Sendejas Jr. Represented By
Raj T Wadhwani
Joint Debtor(s):
Denise Sendejas Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Arturo Garcia Jr. Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Terry E Crossley Represented By Christopher J Langley
Joint Debtor(s):
Janell Crossley Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steven Michael Cross Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wendy M Konieczko Represented By Sundee M Teeple
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Benjamin John Ramos Represented By Kevin M Mahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nery B. Mejia Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ida Mary Valencia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Riley Oneill Adamson Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sheila Malone Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wendy Ramirez Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joel O. Romano Represented By Patricia M Ashcraft
Joint Debtor(s):
Maria Isabel C. Romano Represented By Patricia M Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kimberly Ida McGee Hager Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Denise Valencia Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Yolanda Williams Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nathaniel Russell Williams Represented By Dina Farhat
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 12
On October 31, 2018, Yair Contreras ("Debtor") filed their petition for chapter 13 relief. Among the assets of the estate is a 2017 Dodge RAM (the "RAM"). On November 19, 2018, the Debtor filed his Motion to Value the RAM ("Motion"). No opposition has been filed.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor can bifurcate a secured, unavoidable debt, with one part representing the amount of the value of the collateral, and the deficiency being treated as an unsecured claim. See In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
The Debtor asserts that the RAM’s value, and thus its secured portion, should be determined to be $40,175, with an unsecured deficiency claim for $9,276. In support, the Debtor has submitted a NADA Guide Report. Service of the Motion was proper and Wells Fargo has filed no opposition or objection to the valuation.
Separately, the Court notes that although Wells Fargo has not filed a proof of claim, the bar date has not yet lapsed.
11:00 AM
TENTATIVE RULING
For the foregoing reasons, the Court is inclined to GRANT the Motion, with the exception that the amount of the unsecured portion of the claim shall be controlled by a filed proof of claim consistent with the local rules in the event that Wells Fargo timely files a proof of claim.
APPEARANCES WAIVED. Movant to lodge an order within 7 days.
Debtor(s):
Yair Salvador Carranza Contreras Represented By
Lionel E Giron
Movant(s):
Yair Salvador Carranza Contreras Represented By
Lionel E Giron Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CORINTHIA A. WILLIAMS
From: 11/29/18 EH
Docket 7
11/29/2018
The evidence that the tax issue which resulted in the dismissal of the Debtor’s second case is insufficient. At minimum, the Debtor should have provided a declaration of the tax preparer she hired to give the Court an opinion regarding the likelihood that the IRS would again file a claim of a similar amount, which would render the Debtor’s case infeasible.
As to service, the Order Setting Hearing on Shortened time required that a Written Notice of the Hearing AND a copy of the Court’s Order Setting the Hearing be sent to the creditors indicated. Instead, Docket No. 15 is a stand-alone proof of service which indicates that the Order and a Notice of Hearing were mailed to the foreclosing creditor. However, Docket reflects a failure by Debtor to file a Notice of Hearing indicating the date, time and place of the hearing. The stand-alone proof of service is insufficient for the Court to have certainty that a Notice of Hearing which satisfies due process requirements was mailed to the foreclosing creditor.
As such, the tentative ruling is to DENY the Motion. APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley
Movant(s):
Corinthia A. Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TANYUA ALICIA GATES-HOLMES
EH
Docket 10
12/20/2018
Service: Proper Opposition: None
The Debtor’s prior chapter 13 plan depended on her earning overtime income. The Debtor indicates that her overtime pay was reduced which caused her to fall behind on her plan payments. In support of this Motion, the Debtor asserts she has now rented a room in her home to enable her to make up for the lost income. Attached to the Motion as Exhibit "E" is a rental agreement for the Debtor’s new tenant that indicates Debtor will be paid $850 per month in rental income to supplement her nursing income. The increase in income is reflected in the Debtor’s schedules and appears to significantly make up the shortfall that resulted in the prior dismissal. For these reasons, the Court finds that the Debtor has overcome the presumption that the instant case was not filed in good faith.
The Court is inclined to GRANT the Motion. APPEARANCES REQUIRED.
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
11:00 AM
Movant(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PABLO CORNEJO
EH
Docket 7
12/20/2018
The case was dismissed at the confirmation hearing for the following reasons:
No Post-Petition Secured Debt Payment History Declaration was filed [LBR 3015-1(M)].
The Statement of Related Cases did not list all prior bankruptcy cases.
No proof of income from all sources was provided 7 days before 341(a) or at all [LBR 3015-1(c)(3)].
Business reporting requirements for self-employed Debtors were not complied with:
[LBR 3015-1(c)(4)]: No 6 months of bank statements for all personal and business bank accounts were provided, (b) Debtor testified that he works from home, but his business income and expense statements include personal expenses that should be listed on Schedule J (utilities, car payment, car insurance, meals).
Debtor testified he owes delinquent income taxes to the IRS and FTB, but such debts were listed on Schedule E, and the IRS and FTB were not served with the plan.
Debtor's Schedules listed a 2015 Chevy Camaro, but the plan made no provision for this car and no car payment was deducted from Schedule J (Trustee needed to see a copy of the auto purchase contract to determine the monthly payment amount and when it will be paid off).
The notice of 341a and confirmation hearings had the wrong objection due
11:00 AM
date, and no service list is attached to the proof of service.
The Statement of Compensation said that the balance of the attorney's fees owed is $2,500 but the Plan states the balance owed is $3,500.
The Motion makes a vague assertion that the Debtor’s counsel failed to file proper documents. The explanation provided is woefully inadequate to address the numerous failures indicated by the Trustee in his objections to confirmation. In particular, if the Debtor’s counsel accepts fault for the above-referenced failings, there should simultaneously be an explanation of how the Debtor’s counsel shall redress the problems raised by his substandard handling of the prior case. Additionally, the Motion does not actually identify the prior cases dismissed during the prior year. The Court’s docket reflects at least one case. However, the Debtor has checked boxes indicating alternately that he is seeking to "impose" and "continue" the stay.
In addition to the foregoing, it appears that secured creditors were not filed in accordance with FRBP 7004 in that they were not served to the attention of an officer and were not served via certified mail.
As such the Court is inclined to DENY the Motion. APPEARANCES REQUIRED.
Debtor(s):
Pablo Cornejo Represented By Ivan Trahan
Movant(s):
Pablo Cornejo Represented By Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JOSEPH LIEBGOTT IV & ROBBY JEAN HARRISON
EH
Docket 9
12/20/2018
Service: Proper Opposition: None
The Debtor Wife has provided evidence that her prior case was dismissed because she had surgery which resulted in her being out of work for four months. Based on the Debtor’s declaration that she has now returned to work, the Court finds that the Debtor has overcome the presumption that the case was not filed in good faith and the Court is inclined to GRANT the Motion.
APPEARANCES REQUIRED.
Debtor(s):
Joseph Liebgott IV Represented By John F Brady
Joint Debtor(s):
Robby Jean Harrison Represented By John F Brady
Movant(s):
Joseph Liebgott IV Represented By
11:00 AM
John F Brady
Robby Jean Harrison Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 109
- NONE LISTED -
Debtor(s):
Agnes Smith Represented By
James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- NONE LISTED -
Debtor(s):
Jeremiah Johnson Nellis Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 67
- NONE LISTED -
Debtor(s):
Celia Baeza Represented By
Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 304
- NONE LISTED -
Debtor(s):
Jose N Recinos Represented By Michael Smith Sundee M Teeple
Joint Debtor(s):
Patricia Recinos Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 91
- NONE LISTED -
Debtor(s):
Justin Sloan Harvey Represented By Jenny L Doling Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 140
- NONE LISTED -
Debtor(s):
Jonathan William Nicastro Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 125
- NONE LISTED -
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 230
- NONE LISTED -
Debtor(s):
Edward Edmund Zozaya Represented By Dana Travis
Joint Debtor(s):
Georgia Parrilla Zozaya Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 144
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 85
- NONE LISTED -
Debtor(s):
Joseph John Vargas Represented By Dana Travis
Joint Debtor(s):
Lydia Vargas Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 73
- NONE LISTED -
Debtor(s):
Isaias Melo Represented By
Rebecca Tomilowitz
Joint Debtor(s):
Rosa Melo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 79
- NONE LISTED -
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Richard LaFayatte Sellers Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 176
- NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Louis Gutierrez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 84
- NONE LISTED -
Debtor(s):
Bryan D. Chriss Represented By Michael Smith Cynthia L Gibson Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Joe Wallace Brown Represented By Christopher J Langley
Joint Debtor(s):
Yolanda Denise Moore Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
- NONE LISTED -
Debtor(s):
Denice Laree Grimes Represented By
M Wayne Tucker
Joint Debtor(s):
Derrick Gregory Grimes Represented By
M Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- NONE LISTED -
Debtor(s):
Candice Maria Borrego Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 37
- NONE LISTED -
Debtor(s):
Paulette M Gonzales Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 55
- NONE LISTED -
Debtor(s):
Jaime Villalobos Represented By
Rabin J Pournazarian
Joint Debtor(s):
Jennifer Villalobos Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
- NONE LISTED -
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Alejandro J. Casillas Represented By Tina H Trinh
Joint Debtor(s):
Patricia Casillas Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Gilberto Linares Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
- NONE LISTED -
Debtor(s):
Amanuel Montrell Bradberry Represented By Gary S Saunders
Joint Debtor(s):
Katrina Lashall Bradberry Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
- NONE LISTED -
Debtor(s):
Keely J Barrett Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Lawrence A McCoy Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Alejandro Guillen Represented By Neil R Hedtke
Joint Debtor(s):
Karla Guillen Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Also #93 & #93.1 EH
Docket 127
- NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
12:30 PM
Also #92 & #93.1 EH
Docket 129
- NONE LISTED -
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
Movant(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
12:30 PM
From: 8/28/18, 9/25/18, 11/27/18, 12/19/18
Also #92 & #93 EH
Docket 5
12/19/2018
All parties have authorization to appear telephonically for the 12/19/2018 Status Conference.
Debtor(s):
LA Steel Services, Inc., a California Represented By
James C Bastian Jr Melissa Davis Lowe
1:00 PM
Adv#: 6:16-01128 Frealy v. Trotochau et al
EH
Docket 53
- NONE LISTED -
Debtor(s):
M. A. Tabor Represented By
Judith Runyon
Defendant(s):
Robin Sherrie Trotochau Pro Se
Pacific Mortgage Exchange, Inc. Represented By
Leib M Lerner
Movant(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Plaintiff(s):
Todd A. Frealy Represented By Anthony A Friedman Lindsey L Smith
Trustee(s):
Todd A. Frealy (TR) Represented By
1:00 PM
Anthony A Friedman Lindsey L Smith
1:00 PM
EH
Docket 60
On September 15, 2017, Cleon Sonnenfeld ("Creditor") filed a Chapter 7 involuntary petition against Joshua Richardson ("Debtor"). On November 8, 2017, an order for relief was entered pursuant to stipulation between Creditor and Debtor. That same day, the Court entered an order approving a stipulation which avoided a deed of trust recorded on June 20, 2017, against Debtor’s residence, in favor of HLE Law Group.
On February 6, 2018, Creditor removed certain state court litigation to bankruptcy court. The state court litigation contained causes of action for: (1) breach of contract;
fraud; (3) unjust enrichment; (4) constructive trust; and (5) declaratory relief. On June 29, 2018, Creditor filed a complaint to determine dischargeability and to deny Debtor a discharge.
On November 8, 2018, Trustee filed a motion to approve compromise. No opposition to the motion has been filed.
1:00 PM
The dispute between Creditor and Debtor relates to a loan made by Creditor to Debtor in 2012 for the total amount of $225,000. According to the instant motion, the purpose of the loan was for Debtor to purchase certain real property located in Moreno Valley, California (the "Property"). Creditor asserts that Debtor breached the loan agreement by failing to provide Creditor with a deed of trust, and that, as a result, the Property is subject to a constructive trust in favor of Creditor. The compromise motion also deals with potential avoidance actions against Gabriela Diaz.
The compromise under consideration contains the following components. First, Creditor shall obtain a stipulated judgment in the removed action, adjudicating that the Property is subject to a constructive trust and that Creditor is entitled to a judgment in the amount of $318,778.12. Second, Trustee shall sell the Property. The first $303,000 of the sale proceeds would be payable to Creditor1, while any amount exceeding $303,000 would be divided so that the bankruptcy estate receives 30% and Creditor receives 70%.2 Third, Trustee would assign the potential avoidance actions against Gabriela Diaz to Creditor, with any net recoveries to be distributed 30% to the bankruptcy estate and 70% to Creditor. The compromise motion also contemplates that Creditor will object to Debtor’s homestead exemption.
FED. R. BANKR. P. Rule 9019 provides that:
On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.
The Ninth Circuit Court of Appeals have previously outlined the factors to be considered in approving a compromise pursuant to Rule 9019: (1) the probability of success in the litigation; (2) the difficulties to be encountered in the matter of
1:00 PM
collection; (3) the complexity, expense, inconvenience and delay of litigation; and (4) the interest of creditors with deference to their reasonable. See In re A&C Props., 784 F.2d 1377, 1381 (9th Cir. 1986). The listed factors assist the Court in determining "the fairness, reasonableness and adequacy of a proposed settlement agreement." Id.
There are a variety of material details which are not adequately addressed in the compromise motion under consideration, hindering the Court’s review of the fairness and reasonableness of the compromise These issues are enumerated below:
While the motion does not provide the relevant information, the Court takes judicial notice of Schedule A [Dkt. No. 19] and Schedule C [Dkt. No. 21]; these schedules indicate that Debtor identified the Property as having a fair market value of $303,000 and claimed an exemption in the amount of
$100,000. If these figures are correct, and subject to the issue listed below, it would appear any recovery by the estate from the sale of the Property would be contingent on a successful objection to Debtor’s homestead exemption, which has not yet been filed nor been detailed in the instant motion.
It is unclear from the motion, but to the extent that the motion attempts to pay unsecured creditors prior to satisfying Debtor’s homestead exemption, such approach is impermissible. While the settlement agreement frames the approach as paying the HLE lien, there is, quite simply, no HLE lien and, to the extent that Creditor is offering a carve-out of $25,000, the compromise does not articulate a legal basis by which the such amounts could be used to pay unsecured creditors prior to satisfying the homestead exemption.
It appears that Creditor may be receiving a small windfall from the proposed compromise, which is not adequately explained or detailed. The Court takes judicial notice of the removed state court complaint and notes that Creditor requested a judgment of $252,516.94. The Court also takes judicial notice of the claims register, and notes that Creditor filed an unsecured claim on April 13, 2018, in the amount of $301,167.85 ("Claim 2"). Based on the record before the Court, it appears that the proposed compromise transforms Claim 2 into a secured claim and increases the claim amount by approximately
$17,000. Additionally, the proposed compromise would further increase Creditor’s recovery depending upon the sale price of the Property or success in the potential avoidance actions.
1:00 PM
The consideration the estate is receiving from this compromise, on the other hand, is unclear and speculative, given that any recovery by the estate appears to be conditioned on a successful objection to Debtor’s homestead exemption,
depends upon the sale price of the Property, which has not been detailed in the motion, and also depends upon the recovery in the potential avoidance actions, which has not been described at all.
On the record before the Court, the Court is simply unable to ascertain the fairness or reasonableness of the proposed compromise.
Parties to address the issues above, and the Court may CONTINUE the matter for supplemental briefing.
APPEARANCES REQUIRED.
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Movant(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
1:00 PM
Adv#: 6:18-01035 Sonnenfeld v. Richardson
From: 3/28/18, 6/13/18, 7/25/18, 10/24/18, 12/19/18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Joshua C Richardson Pro Se
Plaintiff(s):
Cleo Sonnenfeld Represented By Laila Masud
D Edward Hays
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman