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From: 12/18/19 Also #2 & #3 EH
Docket 34
On August 8, 2018, Eva Gonzalez ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 1902 Penasco Grande, Perris, CA 92570 (the "Property"). Schedule A stated that Debtor owned the Property jointly with her ex-spouse. Schedule C claimed an exemption in the amount of $75,000. Schedule D listed a secured claim in the amount of $153,255.29. On November 19, 2018, Debtor received her discharge. Trustee subsequently employed bankruptcy counsel and a real estate broker.
On November 26, 2019, Trustee filed: (1) a motion for sale of the Property and related relief; and (2) a motion requiring Debtor to turn over the Property. Regarding the former, Trustee proposes to sell the Property to Nathalie Martin for $290,000.
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Pursuant to the terms of the sale motion, the sale proceeds would be distributed as follows: (a) $154,000 to Ocwen on account of a deed of trust; (b) $28,314.40 to First Technology Federal Credit Union on account of Claim 1; (c) $23,200 for costs of sale;
(d) $28,085.60 to Debtor; (e) $30,452 to Debtor’s ex-spouse; and (f) $25,948 for the bankruptcy estate.
The distribution of the potential sale proceeds in this case is somewhat unique due to a marital settlement agreement entered into between Debtor and her ex-spouse on September 11, 2017. The waterfall outlined in Trustee’s motion proposes that the deed of trust and costs of sale be deducted from the sale proceeds, leaving $112,800. Trustee then proposes to divide the resulting $112,800 so that $56,400 is attributable to Debtor’s interest in the Property and $56,400 is attributable to the interest of Debtor’s ex-spouse. Regarding the former, Trustee proposes to pay Claim 1, and return the remainder to Debtor on account of her homestead exemption. Regarding the latter, Trustee’s proposes to keep $25,948 on account of the "Bankruptcy Estate’s Claim against ex-spouse," while returning the remainder to the ex-spouse.
The marital settlement agreement, however, provides that "[t]he proceeds of the sale of the home shall be divided equally between the parties, minus any reimbursement owed to the other party." This provision appears to be in conflict with Trustee’s proposed distribution. Trustee’s distribution appears to assume that proceeds would be divided equally, with Debtor potentially holding a claim against her ex-spouse for reimbursements of certain pre-identified expenses. The quoted language of the marital settlement agreement, however, appears to provide for an automatic adjustment of the proceeds of the sale of the home to account for that reimbursement. When the Court applies that automatic adjustment to the sale proceeds here, the result is that $30,425 of the sale proceeds are attributable to the interest of Debtor’s ex-spouse, and the remaining $82,348 of the sale proceeds are attributable to the interest of Debtor. Of the $82,348 in proceeds attributable to the interest of Debtor, $28,314.40 would be used to satisfy Claim 1, leaving $54,033.60 to satisfy Debtor’s homestead exemption. Because Debtor has claimed a homestead exemption in the amount of $75,000, there would no remaining proceeds for the bankruptcy estate.
"Under the Code and California law, exemptions are to be construed broadly and liberally in favor of the debtor. Homestead exemptions, in particular, are to be construed liberally on behalf of the homesteader." In re Rolland, 317 B.R. 402, 413
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(Bankr. C.D. Cal. 2004) (citation omitted). Because the marital settlement agreement provided for an automatic adjustment of the sale proceeds to account for certain required reimbursements, that adjustment presumably needs to occur prior to determining what amount of the proceeds are attributable to Debtor’s interest and what amount is attributable to Debtor’s ex-spouse’s interest. Applying this adjustment prior to dividing up the proceeds between Debtor and Debtor’s ex-spouse appears to leave the bankruptcy estate with no unexempt sale proceeds. Because the entirety of the sale proceeds would then be distributed to Debtor, Debtor’s ex-spouse, and secured creditors, it is not clear that Trustee has satisfied the business judgment test. See, e.g., In re KVN Corp., Inc., 514 B.R. 1, 7 (B.A.P. 9th Cir. 2014) (quoting U.S. DOJ Exec. Office for U.S. Trs., Handbook for Chapter 7 Trustees at 4–16 (2012)) ("A trustee may sell assets only if the sale will result in a meaningful distribution to creditors.").
Given the foregoing, the Court is inclined to CONTINUE the matter for Trustee to provide supplemental briefing on whether Debtor’s claimed homestead exemption applies to the reimbursements required by the marital settlement agreement, or for express consent from Debtor to the proposed allocation.
APPEARANCES REQUIRED.
Debtor(s):
Eva C. Gonzalez Represented By Luis Aguilar
Movant(s):
Todd A. Frealy (TR) Represented By Lovee D Sarenas
Trustee(s):
Todd A. Frealy (TR) Represented By
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Lovee D Sarenas
2:00 PM
From: 12/18/19 Also #1 & #3 EH
Docket 38
On August 8, 2018, Eva Gonzalez ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 1902 Penasco Grande, Perris, CA 92570 (the "Property"). Schedule A stated that Debtor owned the Property jointly with her ex-spouse. Schedule C claimed an exemption in the amount of $75,000. Schedule D listed a secured claim in the amount of $153,255.29. On November 19, 2018, Debtor received her discharge. Trustee subsequently employed bankruptcy counsel and a real estate broker.
On November 26, 2019, Trustee filed: (1) a motion for sale of the Property and related relief; and (2) a motion requiring Debtor to turn over the Property. Regarding the former, Trustee proposes to sell the Property to Nathalie Martin for $290,000.
Pursuant to the terms of the sale motion, the sale proceeds would be distributed as follows: (a) $154,000 to Ocwen on account of a deed of trust; (b) $28,314.40 to First
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Technology Federal Credit Union on account of Claim 1; (c) $23,200 for costs of sale;
(d) $28,085.60 to Debtor; (e) $30,452 to Debtor’s ex-spouse; and (f) $25,948 for the bankruptcy estate.
The distribution of the potential sale proceeds in this case is somewhat unique due to a marital settlement agreement entered into between Debtor and her ex-spouse on September 11, 2017. The waterfall outlined in Trustee’s motion proposes that the deed of trust and costs of sale be deducted from the sale proceeds, leaving $112,800. Trustee then proposes to divide the resulting $112,800 so that $56,400 is attributable to Debtor’s interest in the Property and $56,400 is attributable to the interest of Debtor’s ex-spouse. Regarding the former, Trustee proposes to pay Claim 1, and return the remainder to Debtor on account of her homestead exemption. Regarding the latter, Trustee’s proposes to keep $25,948 on account of the "Bankruptcy Estate’s Claim against ex-spouse," while returning the remainder to the ex-spouse.
The marital settlement agreement, however, provides that "[t]he proceeds of the sale of the home shall be divided equally between the parties, minus any reimbursement owed to the other party." This provision appears to be in conflict with Trustee’s proposed distribution. Trustee’s distribution appears to assume that proceeds would be divided equally, with Debtor potentially holding a claim against her ex-spouse for reimbursements of certain pre-identified expenses. The quoted language of the marital settlement agreement, however, appears to provide for an automatic adjustment of the proceeds of the sale of the home to account for that reimbursement. When the Court applies that automatic adjustment to the sale proceeds here, the result is that $30,425 of the sale proceeds are attributable to the interest of Debtor’s ex-spouse, and the remaining $82,348 of the sale proceeds are attributable to the interest of Debtor. Of the $82,348 in proceeds attributable to the interest of Debtor, $28,314.40 would be used to satisfy Claim 1, leaving $54,033.60 to satisfy Debtor’s homestead exemption. Because Debtor has claimed a homestead exemption in the amount of $75,000, there would no remaining proceeds for the bankruptcy estate.
"Under the Code and California law, exemptions are to be construed broadly and liberally in favor of the debtor. Homestead exemptions, in particular, are to be construed liberally on behalf of the homesteader." In re Rolland, 317 B.R. 402, 413 (Bankr. C.D. Cal. 2004) (citation omitted). Because the marital settlement agreement provided for an automatic adjustment of the sale proceeds to account for certain
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required reimbursements, that adjustment presumably needs to occur prior to determining what amount of the proceeds are attributable to Debtor’s interest and what amount is attributable to Debtor’s ex-spouse’s interest. Applying this adjustment prior to dividing up the proceeds between Debtor and Debtor’s ex-spouse appears to leave the bankruptcy estate with no unexempt sale proceeds. Because the entirety of the sale proceeds would then be distributed to Debtor, Debtor’s ex-spouse, and secured creditors, it is not clear that Trustee has satisfied the business judgment test. See, e.g., In re KVN Corp., Inc., 514 B.R. 1, 7 (B.A.P. 9th Cir. 2014) (quoting U.S. DOJ Exec. Office for U.S. Trs., Handbook for Chapter 7 Trustees at 4–16 (2012)) ("A trustee may sell assets only if the sale will result in a meaningful distribution to creditors.").
Given the foregoing, the Court is inclined to CONTINUE the matter for Trustee to provide supplemental briefing on whether Debtor’s claimed homestead exemption applies to the reimbursements required by the marital settlement agreement, or for express consent from Debtor to the proposed allocation.
APPEARANCES REQUIRED.
Debtor(s):
Eva C. Gonzalez Represented By Luis Aguilar
Movant(s):
Todd A. Frealy (TR) Represented By Lovee D Sarenas
Trustee(s):
Todd A. Frealy (TR) Represented By Lovee D Sarenas
2:00 PM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Eva C. Gonzalez Represented By Luis Aguilar
Trustee(s):
Todd A. Frealy (TR) Represented By Lovee D Sarenas
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 61
- NONE LISTED -
Debtor(s):
Manuel Huertas Represented By Marcella Lucente
Movant(s):
Nationstar Mortgage LLC Represented By
Melissa A Vermillion Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 35
Service: Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jason Allen Colleasure Represented By Dana Travis
Joint Debtor(s):
Julia Ann Colleasure Represented By Dana Travis
Movant(s):
Freedom Mortgage Corporation Represented By Christina J Khil Dane W Exnowski
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LOANCARE, LLC
EH
Docket 37
- NONE LISTED -
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Movant(s):
LoanCare, LLC. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 12/3/19 EH
Docket 60
Service: Proper Opposition: Debtor
Parties to apprise the court on adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Amanda E Curry Represented By Andy C Warshaw
Joint Debtor(s):
Matthew L Curry Represented By Andy C Warshaw
11:00 AM
Movant(s):
Wilmington Savings Fund Represented By Michelle R Ghidotti Lemuel Bryant Jaquez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
Docket 50
- NONE LISTED -
Debtor(s):
Juan A Martinez Represented By Rebecca Tomilowitz
Movant(s):
US Bank Trust National Association, Represented By
Lemuel Bryant Jaquez D Anthony Sottile
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
From: 12/3/19 EH
Docket 50
Service: Proper Opposition: Debtor
Parties to apprise the court on adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Alexander J Perfinowicz Represented By Manfred Schroer
Joint Debtor(s):
Ingeborg Maria Pefinowicz Represented By Manfred Schroer
11:00 AM
Movant(s):
JPMorgan Chase Bank, National Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 62
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Daniel Lee Crump Represented By Nicholas M Wajda
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DITECH FINANCIAL LLC
EH
Docket 51
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2, 3, and 12. DENY alternative request for adequate protection 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):
Julie Michelle Tsosie Represented By Alon Darvish
Movant(s):
Ditech Financial LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES LLC
EH
Docket 33
Service is Proper Opposition: Late
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Malta Centeno Lambert Represented By Yelena Gurevich
Movant(s):
Carrington Mortgage Services, LLC Represented By
Eric P Enciso Sean C Ferry Erin Elam
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 25
Service is Proper Opposition: Late
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 29
- NONE LISTED -
Debtor(s):
Edwina Brewer Represented By Brian J Soo-Hoo
Movant(s):
Specialized Loan Servicing LLC Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 25
Service is Proper Opposition: None
The Court is inclined to APPROVE the terms of the adequate protection agreement [Dkt. No. 27] filed by the parties on December 23, 2019, including relief from the
§ 1301(a) co-debtor 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):
Phonmany Phengphavong Represented By Todd L Turoci
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 16
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief pursuant to 11 U.S.C. § 362(d)(2) for lack of cause shown. Specifically, the Court notes that the evidence submitted in support of the motion indicates that Debtors do have equity in the subject collateral. 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):
Bernardo Gomez Represented By Kevin Tang
Joint Debtor(s):
Gloria Gomez Represented By Kevin Tang
11:00 AM
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request for adequate protection 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):
Dragan Petrov Represented By Fred Edwards
Joint Debtor(s):
Adela Petrov Represented By
Fred Edwards
Movant(s):
Santander Consumer USA Inc. Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 8
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request for adequate protection 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):
Fredrick Glenn Harrell Represented By James P Doan
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 17
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request for adequate protection 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):
Victor L Sanchez Represented By Ruben Salazar
Joint Debtor(s):
Sclenna Marian Sanchez Represented By Ruben Salazar
Movant(s):
Santander Consumer USA Inc. Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 15
Service is Proper Opposition: None
11 U.S.C. § 365(p)(1) provides: "If a lease of personal property is rejected or not timely assumed by the trustee under subsection (d), the leased property is no longer property of the estate and the stay under section 362(a) is automatically terminated." Here, the deadline to assume the lease with Movant was December 30, 2019, pursuant to § 365(d). The lease not having been assumed, the automatic stay has already terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Kenneth Sam Represented By
Timothy S Huyck
Joint Debtor(s):
Reginia Sam Represented By
Timothy S Huyck
11:00 AM
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 13
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY alternative request for adequate protection 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):
Marlejan Josue Alcaraz Represented By Anerio V Altman
Joint Debtor(s):
Maria De Los Angeles Alcaraz Represented By Anerio V Altman
Movant(s):
Ford Motor Credit Company LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
EH
Docket 20
Service is Proper Opposition: Yes
Movant’s only proffered grounds for relief from the automatic stay is that the case was filed in bad faith due to two previously dismissed Chapter 13 cases, one in 2017 and one in 2019. This Court, however, has already held that Debtors have provided "clear and convincing" evidence that this case was filed in good faith. Based upon the law of the case doctrine, if Movant believes that this case was filed in bad faith, then Movant would need to file a motion to reconsider this Court’s order continuing the automatic stay. See, e.g., Arizona v. California, 460 U.S. 605 (1983) (outlining law of the case doctrine). Because this Court has already held that the case was filed in good faith, the Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Gary Ellison Represented By
Todd L Turoci
11:00 AM
Joint Debtor(s):
Rachelle Malbrough Represented By Todd L Turoci
Movant(s):
HSBC Bank USA, National Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CATAMOUNT PROPERTIES 2018, LLC
EH
Docket 13
Service is Proper Opposition: None
Debtors had a previous bankruptcy case dismissed on August 2, 2019, for failure to make plan payments. Therefore, pursuant to the operation of 11 U.S.C. § 362(c)(3) (A), the automatic stay in the instant case expired on December 12, 2019. Therefore, the Court is inclined to DENY the requests for relief from stay under § 362(d)(1) and
and DENY the request under ¶ 2 as moot.
The Court is inclined to DENY the request for relief under ¶¶ 7 and 10 for lack of cause shown. Regarding ¶7, while Movants initiated an unlawful detainer action against Debtors, that action is still pending and, therefore, immediate eviction of Debtors is inappropriate. Regarding ¶ 10, the Court does not consider the circumstances outlined in the motion to be sufficiently egregious to warrant two-year in rem relief. The Court is inclined to GRANT the in rem relief requested under ¶ 11, however, granting Movant in rem relief for a period of 180 days. The Court is inclined to GRANT waiver of the Rule 4001(a)(3) stay.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Arturo Garcia Jr. Represented By
Lisa F Collins-Williams
Joint Debtor(s):
Sandra Garcia Represented By
Lisa F Collins-Williams
Movant(s):
Catamount Properties 2018, LLC Represented By
Sam Chandra
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: ARROWHEAD CREDIT UNION
EH
Docket 15
Service is Proper Opposition: None
Debtor had a previous bankruptcy case dismissed on December 18, 2018, for failure to make plan payments. Therefore, pursuant to the operation of 11 U.S.C. § 362(c)(3) (A), the automatic stay in the instant case expired on December 20, 2019. Therefore, the Court is inclined to DENY the requests for relief from stay under § 362(d)(1) and DENY the request under ¶ 2 as moot.
The Court is inclined to GRANT request for relief from stay pursuant to 11 U.S.C.
§ 362(d)(4) based on multiple unauthorized transfers of an interest in the property and multiple bankruptcy filings affecting the property. GRANT relief from § 1301(a) stay. GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 9. DENY requests under ¶¶ 7 and 10 for lack of cause shown. Specifically, with regard to the request under ¶ 7, Movant has not yet conducted a foreclosure sale and has not demonstrated a right to immediate eviction of any occupants, and there is no writ of possession presented. With regard to ¶ 10, the Court does not consider the facts of the instant case sufficiently egregious to order indefinite relief.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Silvia Alvarez Represented By
Benjamin A Yrungaray
Movant(s):
Arrowhead Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FEI LAU
EH
Docket 15
Service is Okay Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief pursuant to 11 U.S.C. § 362(d)(2) for lack of cause shown. Specifically, Movant has not demonstrated that Debtor’s residence is not necessary to an effective reorganization. GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
The Court is inclined to DENY the request for relief from stay under § 362(d)(4) and DENY the related requests under ¶¶ 7, 9, 10, and 11. The proffered grounds for the requested relief are that this case was filed in bad faith due to Debtor having filed one previous case that was dismissed in November. This Court, however, has already held that Debtors have provided "clear and convincing" evidence that this case was filed in good faith. Based upon the law of the case doctrine, if Movant believes that this case was filed in bad faith, then Movant would need to file a motion to reconsider this Court’s order continuing the automatic stay. See, e.g., Arizona v. California, 460 U.S. 605 (1983) (outlining law of the case doctrine). Additionally, the Court is inclined to DENY the request under ¶ 3 for lack of cause shown.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Augusto Mora Represented By Christopher J Langley
Movant(s):
Fei Lau Represented By
Luke P Daniels
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WAYNE MORRIS AND CELIA MORRIS
EH
Docket 21
Service is Improper Opposition: None
Judge Houle’s self-calendaring procedures require that, for motions to continue the automatic stay which are set on shortened notice, Debtors must serve secured creditors pursuant to FED. R. BANKR. P. Rule 7004. Here, Debtors have not served the primary secured creditor, Mr. Cooper, pursuant to Rule 7004. Therefore, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Wayne Morris Represented By Michael A Cisneros
Joint Debtor(s):
Celia Morris Represented By
Michael A Cisneros
11:00 AM
Movant(s):
Wayne Morris Represented By Michael A Cisneros
Celia Morris Represented By
Michael A Cisneros
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MICHAEL AND KATHRYN EIDSVOOG
EH
Docket 14
Service is Proper Opposition: None
11 U.S.C. § 362(c)(3)(B) provides that "the court may extend the stay in particular cases as to any or all creditors after notice and a hearing completed before the expiration of the 30-day period" (parenthetical omitted) (emphasis added). Here, the instant case was filed on December 7, 2019. The hearing was set for January 7, 2020. There are thirty-one days in December. Therefore, Debtors not having complied with the statutory requirement that motions to continue the automatic be heard within thirty days of the petition date, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Michael Arthur Eidsvoog Represented By Todd L Turoci
Joint Debtor(s):
Kathryn Michelle Eidsvoog Represented By Todd L Turoci
11:00 AM
Movant(s):
Michael Arthur Eidsvoog Represented By Todd L Turoci
Kathryn Michelle Eidsvoog Represented By Todd L Turoci Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TRIDENT CAPITAL GROUP LLC
CASE DISMISSED 1/6/20
EH
Docket 8
APPEARANCES REQUIRED.
Debtor(s):
Channie Thompson Pro Se
Movant(s):
Trident Capital Group LLC Represented By William E Windham
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: RE NOTES, INSTRUMENTS & INVESTMENTS, LLC
CASE DISMISSED 12/27/19
EH
Docket 7
Service is Improper Opposition: None
Judge Houle’s self-calendaring procedures permit the setting of a hearing on shortened time for motions for relief from the automatic stay which are related to residential unlawful detainer actions. Those procedures, however, require that the Debtor be provided with telephonic notice of the hearing. Here, telephonic notice was not provided to Debtor. Additionally, Judge Houle’s self-calendaring procedures require that Debtor be served with the motion at least five court days prior to the hearing. Movant having filed the instant motion on December 26, 2019, and due to the intervening holiday, Movant would have had to serve this motion via overnight mail to satisfy the service require. Instead, the motion was served via regular mail to a PO Box in Sacramento. Finally, given that the case was dismissed on December 27, 2019, the automatic stay is no longer in effect.
Service being improper, the Court is inclined to DENY the motion. APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Bettina Bakramia Lorton Pro Se
Movant(s):
RE Notes, Instruments & Represented By Jason K Smith
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
EH
Docket 517
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. On December 12, 2018, the Court entered an order extending the exclusivity period for the filing of a Chapter 11 plan and disclosure statement to June 11, 2019. On June 12, 2019, the Court granted a second motion to extend the exclusivity period, providing an additional extension to December 19, 2019.
On November 19, 2019, Debtor filed a third motion to extend the exclusivity period, this time seeking an extension, this time seeking an extension until June 10, 2020.
Debtor’s motion states that Debtor "believes that path to reorganization is an asset sale based upon the economics of the case" [pg. 4, lines 8-9] and "[w]hile the Debtor expects to close the sale of its assets by the end of the summer, the Debtor is not currently in a position to seek confirmation of a Plan." [pg. 5, lines 19-20]. On December 3, 2019, UST filed a limited opposition, noting that the requested extension exceeded the statutory limits set forth in § 1121(d)(2). UST also notes that Debtor has been pursuing a sale of assets for more than a year, and that "[i]f negotiations alone justified extensions of the plan or solicitation exclusivity periods, the initial exclusivity period would be irrelevant." [Dkt. No. 522, pg. 4, lines 15-17]. On December 26, 2019, Debtor and UST entered into a stipulation whereby the
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exclusivity period would be extended to the furthest date permitted by statute, February 15, 2020.
Noting the lack of opposition, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h), the Court is inclined to grant the motion as modified in the stipulation reached with the United States 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):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky
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Jason B Komorsky
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Docket 205
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
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From: 9/4/19, 10/1/19, 11/12/19, 12/10/19
Also #28 EH
Docket 9
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
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From:10/1/19, 11/12/19, 12/10/19 Also #27
EH
Docket 4
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
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EH
Docket 12
- NONE LISTED -
Debtor(s):
Tynisha S. Williams Represented By
James D. Hornbuckle
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 19
- NONE LISTED -
Debtor(s):
William Lee Goebel Represented By Richard J Hassen
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Salvador Dominguez Jr. Represented By Stephen K Moran
Joint Debtor(s):
Danielle M. Dominguez Represented By Stephen K Moran
Trustee(s):
Charles W Daff (TR) Pro Se
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Docket 56
1/8/20
Opposition: None Service: Proper
The application 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 Counsel and Accountant, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: | $3,250.00 |
Trustee Expenses: | $94.05 |
Attorney Fees: | $10,489.50 |
Attorney Expenses: | $506.89 |
Accountant Fees: | $1,218.00 |
Accountant Expenses: | $210.00 |
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):
Victor Hugo Corral Represented By Dana C Bruce
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Trustee(s):
Charles W Daff (TR) Represented By Lynda T Bui Brandon J Iskander
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Docket 23
1/8/20
Opposition: None Service: 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: $1,394.40
Trustee Expenses: $20.00
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):
Eloisa Lopez Represented By
Keith Q Nguyen
Trustee(s):
Arturo Cisneros (TR) Pro Se
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Docket 39
1/8/20
Opposition: None Service: 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: $1,781.43
Trustee Expenses: $31.71
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):
Adam Charles Welker Represented By Brian J Soo-Hoo
Joint Debtor(s):
La Nina Marie Ann Welker Represented By Brian J Soo-Hoo
Trustee(s):
Charles W Daff (TR) Pro Se
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Docket 33
1/8/20
Opposition: None Service: 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: $1,860.65
Trustee Expenses: $28.30
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):
Ali A M Ashour Represented By Neil R Hedtke
Trustee(s):
Arturo Cisneros (TR) Pro Se
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From: 10/17/19, 12/4/19 EH
Docket 11
- NONE LISTED -
Debtor(s):
Suzanne Joyce Vargo-Wagner Pro Se
Movant(s):
Suzanne Joyce Vargo-Wagner Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
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EH
Docket 491
- NONE LISTED -
Debtor(s):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Movant(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
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EH
Docket 207
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On, December 5, 2013, TD Bank USA, N.A. ("TD Bank") filed a claim arising by credit card purchases ("Claim 1-1"). TD Bank’s filing stated the amount of Claim 1-1 to be $459.62, all of which is unsecured.
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion asking for Claim 1-1 be reduced because TD Bank received a payment of $192, leaving $267.62 as a general unsecured claim. (Dkt No. 207, Ex. 2).
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c)
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(2)(D)(i)-(ii).
TD Bank’s filing of Claim 1-1 followed the procedures listed in FRBP 3001(c) (3): (1) the date of the last payment was provided, (2) the date of the account holder’s last transaction, (3) the date on which the account was charged to profit and loss, etc. Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $459.62.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See contra, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
By filing this motion, the Trustee, as a party in interest, rightfully discharged his duty. The Trustee believed that TD Bank has been paid a portion of its unsecured claim and it is entitled to only $267.62. The Trustee provided evidence of the Chapter 13 Trustee’s Final Report and Accounting. This information provides ample support to rebut the prima facial validity of Claim 1-1.
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
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remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
TD Bank, not responding to the motion, has failed to prove the validity of Claim 1-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response will be deemed consent. Thus, the Court GRANTS the request to reduce Claim 1-1 by $192.00, which was paid, leaving $267.00 due on Claim 1-1.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #16
EH
Docket 209
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On, December 12, 2013, Santander Consumer USA, Inc. ("Santander") acting as servicer for Citi filed a claim secured by Debtors vehicle, a 2006 Ford Focus ("Claim 3-1").
Santander filing stated the amount of Claim 3-1 to be $4,434.04 all of which was secured by the Ford Focus. On December 30, 2013, Debtors filed an objection to Claim 3-1, requesting a reduction in the secured amount:
That Debtors’ 2006 Ford Focus be valued at $1,800;
that Santander be paid a secured amount of $1,800 at an interest rate of four percent, totaling $1,988.98; and
that Debtors have such other and further relief as the Court may deem just and proper. (Dkt No. 21).
After considering the evidence and argument presented by the Debtors, the Court granted Debtors’ objection, alleging a secured claim of $1,800 payable at four
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percent interest and the remaining $2,634.03 as unsecured. (Dkt No. 32).
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion asking for Claim 3-1 be reduced because Santander received the full secured portion of the claim in the amount of
$1,800.00 plus $94.79 in interest and $1,100.33 of the unsecured claim, leaving only
$1,533.70 due. (Dkt No. 209, Ex. 3).
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). In this case, Santander filed Claim 3-1 to take part in the distribution via Chapter 13 plan.
Santander’s filing of Claim 3-1 provided (1) a copy of the writing securing the claim, (2) the claim’s principal amount, interest, fees, and other charges incurred, (3) an itemize statement of the charges, (4) and a statement of the amount necessary to cure any defaults. If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c)(2)(D) (i)-(ii). Because Claim 3-1 was filed pursuant to FRBP 3001, its filing constitutes a prima facie evidence of its validity.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). Here, the Trustee filed a
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motion to disallow a portion of the claim.
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See contra, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
The Trustee in this situation provided the motion asking for Claim 3-1 to be reduced, the order granting that motion, and the Chapter 13 Trustee’s Final Report and Account. All this information provides ample support to rebut the prima facia validity of Claim 3-1.
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.
Santander, not responding to the motion, has failed to prove the validity of Claim 3-1 by a preponderance of the evidence. Furthermore, pursuant to LBR
9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response will be deemed consent. Thus, the Court GRANTS the request to reduce Claim 3-1 by $2,995.12, which was paid, leaving $1,533.70 due on the unsecured portion of Claim 3-1.
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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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #16
EH
Docket 211
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On, December 27, 2013, Sprint Corporation ("Sprint") filed a claim based on services performed ("Claim 4-1"). Sprint’s filing stated the amount of Claim 1-1 to be $133.27, all of which is unsecured.
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion asking for Claim 4-1 be reduced because Sprint received a payment of $40.92, leaving $92.35 as a general unsecured claim. (Dkt No. 211, Ex. 2).
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim.
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Sprint’s filing of Claim 4-1 does not follow all the procedures listed in FRBP
3001(c)(2). An itemized statement was not filed listing the amount of interest, fees, expenses or charges. Nonetheless, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed, but a sanction against the claimant may be given. FBRP 3001(c)(2)(D)(i)-(ii).
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See contra, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
By filing this motion, the Trustee, as a party in interest, rightfully discharged his duty. The Trustee believed that Sprint has been paid a portion of its unsecured claim and it is entitled to only $92.35. The Trustee provided evidence of the Chapter 13 Trustee’s Final Report and Accounting. This provided sufficient support to refute the amount of Claim 4-1 because it failed to meet the prima facie validity requirement.
In the alternative, for arguendo sake, if Sprint had fulfilled the requirement pursuant to FRBP 3001, the Trustee, nonetheless, would have rebutted the prima facial validity of Claim 1-1 with the evidence he has provided. 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
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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.
Sprint, not responding to the motion, has failed to prove the validity of Claim 1-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response will be deemed consent. Thus, the Court GRANTS the request to reduce Claim 4-1 by $192.00, which was paid, leaving $92.35 due on Claim 4-1.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #16
EH
Docket 214
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On January 3, 2014, American InfoSource LP. ("American") acting as agent for First Data Global Leasing filed two claims: one claim in the amount of $1,360.80 ("Claim 5-1") and the other claim in the amount of $1,900.00 ("Claim 6-1"), both based on services rendered.
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion asking for Claim 5-1 and Claim 6-1 both be reduced because American received payments on those claims. (Dkt No. 214, Ex. 3). The Trustee alleges that $586.46 was paid on Claim 5-1 and $794.03 was paid on Claim 6-1.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d
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772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim.
American’s filing of Claim 5-1 and Claim 6-1 does not follow all the procedures listed in FRBP 3001(c)(2). Itemized statements were not filed listing the amount of interest, fees, expenses or charges. Nonetheless, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed, but a sanction against the claimant may be given. FBRP 3001(c)(2)(D)(i)-(ii).
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See contra, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
By filing this motion, the Trustee, as a party in interest, rightfully discharged his duty. The Trustee believed that American has been paid a portion of its unsecured claims and it is entitled to only $792.34 for Claim 5-1 and $1,106.77 for Claim 6-1. The Trustee provided evidence of the Chapter 13 Trustee’s Final Report and Accounting. This provided sufficient support to refute the amount of Claim 5-1 and Claim 6-1 because it failed to meet the prima facie validity requirement.
In the alternative, for arguendo sake, if American had fulfilled the requirements pursuant to FRBP 3001, the Trustee, nonetheless, would have rebutted
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the prima facial validity of both claims with the evidence he has provided. 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.
American, not responding to the motion, has failed to prove the validity of Claim 5-1 and 6-1 by a preponderance of the evidence. Furthermore, pursuant to LBR 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response will be deemed consent. Thus, the Court GRANTS the disallowance of
$568.46, which was paid, leaving $792.34 due on the Claim 5-1, and GRANTS the the request to reduce Claim 6-1 by $794.03, which was paid, leaving $1,106.77 due on Claim 6-1.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
11:00 AM
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #16
EH
Docket 216
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On January 17, 2014, Wells Fargo Bank, N.A. ("Wells Fargo") filed a claim arising from a mortgage securing property at 24808 Candlenut Court, Moreno Valley, California 92557 (the "Property"). Wells Fargo alleged that the amount of the claim was $220,550.36. On February 2, 2017, Wells Fargo filed an amended claim, changing the amount to $212,127.36 ("Claim 7-1")
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion to allow the Claim 7-1. Dkt No.
216. The Trustee motion states that the estate neither has administered nor will administer the Property. Id. Thus, the claim should be allowed as a fully secured claim that is not entitled to a dividend. Id.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution,
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contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
Pursuant to FRBP 3001(c), Wells Fargo provided the claim amount; including an itemization of the interest, fees, expenses, and other charges, a statement of the amount necessary to cure any defaults and the mortgage which attached to the property. Fulfilling all the requirements of FRBP 3001(c), Wells Fargo has a valid claim, and the filing constitute the validity and the amount of the claim.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
Here, the Trustee has the right to object to the claim, yet he does the opposite, allowing the claim. Thus, the claim is still considered valid and the amount correct.
However, the Trustee’s motion does not end with just allowing the claim. The Trustee also wants to prevent Wells Fargo from receiving a dividend payment.
Distribution of Chapter 7 is governed by § 726(a)(1) which references the payments of the kind specified in and in the order specified in § 507. Because secured creditors of the same kind as Wells Fargo are neither listed in § 507 nor are they provided for under § 726 any distribution, Wells Fargo lacks any entitlement to dividends.
Furthermore, because the Trustee voluntarily decided not to administer the property for the estate, the Property is abandoned to the Debtors. 11 U.S.C. § 554(c). Therefore, it seems as if the Debtors have elected a "voluntary ride-through," which allows the Debtors to retain the Property provided they are current on the Property and Wells Fargo does not object. In re Jensen, 407 B.R. 378 (Bankr. C. Cal. 2008). See [Vol. 4] Collier on Bankruptcy ¶ 507.02 (Richard Levin & Henry J. Sommer eds., 16th
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ed.)
Wells Fargo, not responding to the motion, has failed to object. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS request to allow Claim 7-1, in the amount of $212,127.36, and not entitled to recover from the estate.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #16
EH
Docket 218
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On January 30, 2014, Riverside County Regional Medical Center ("RCRM") filed a claim based on services performed ("Claim 11-1"). RCRM’s filing stated the amount of Claim 11-1 to be $1,816.00 all of which is unsecured.
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion asking for Claim 11-1 be reduced because RCRM received a payment of $758.61, leaving $1,057.39 as a general unsecured claim. (Dkt No. 218, Ex. 2).
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a
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claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
RCRM’s filing of Claim 11-1 followed the procedures listed in FRBP 3001(c) (2). Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $1,816.00.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See contra, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
By filing this motion, the Trustee, as a party in interest, rightfully discharged his duty. The Trustee believed that RCRM has been paid a portion of its unsecured claim and it is entitled to only $1057.39. The Trustee provided evidence of the Chapter 13 Trustee’s Final Report and Accounting. This information provides ample support to rebut the prima facial validity of Claim 11-1.
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,
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931 F.2d at 623.
RCRM, not responding to the motion, has failed to prove the validity of Claim 11-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS the request to reduce Claim 11-1 by $758.61, which was paid, leaving $1,057.39 due on Claim 11-1.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Also #10 - #15
EH
Docket 220
On November 14, 2013 ("Petition Date"), Josue Luna ("Debtor") and Fabiola Luna ("Joint Debtor") (collectively, "Debtors") filed for voluntary Chapter 13 petition. On October 2, 2017, Sterling Jewelers, Inc. doing business as Kay Jewelers ("Sterling") filed a claim arising from the purchase of jewelry (the "Jewelry"). Sterling alleged that the amount of the claim was $2,945.49 ("Claim 16-1"). On the filing documents, Sterling stated that the claim was unsecured. However, on pages 5 and 6 of its Official Form 410, Sterling was granted a security interest in the Jewelry purchased by Debtor.
On June 21, 2017, Debtors’ petition was converted to Chapter 7, and the Chapter 13 trustee was replaced by a Chapter 7 trustee, John P. Pringle ("Trustee"). On December 2, 2019, the Trustee filed this motion to allow the Claim 16-1. Dkt No.
220. The Trustee motion states that the estate neither has administered nor will administer the Jewelry. Id. Thus, the claim should be allowed as a fully secured claim that is not entitled to a dividend. Id.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some
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purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
Pursuant to FRBP 3001(c), Sterling provided the claim amount; including an itemization of the interest, fees, expenses, and other charges, a statement of the amount necessary to cure any defaults; and the security interest which attached to the Jewelry. Fulfilling all the requirements of FRBP 3001(c), Sterling has a valid claim, and the filing constitute the validity and the amount of the claim.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. "A trustee[, being a party in interest,] has, not only the right but the duty, to object to any claim not entitled to allowance against the estate’s assets." In re Thompson, 965 F.2d 113 (1st Cir. 1992). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
Here, the Trustee has the right to object to the claim, yet he does the opposite, allowing the claim. Thus, the claim is still considered valid and the amount correct.
However, the Trustee’s motion does not end with just allowing the claim. The Trustee also wants to prevent Sterling from receiving a dividend payment.
Distribution of Chapter 7 is governed by § 726(a)(1) which references the payments of the kind specified in and in the order specified in § 507. Because secured creditors of the same kind as Sterling are neither listed in § 507 nor are they
Furthermore, because the Trustee voluntarily decided not to administer the property for the estate, the Property is abandoned to the Debtors. 11 U.S.C. § 554(c). Therefore, it seems as if the Debtors have elected a "voluntary ride-through," which allows the Debtors to retain the Jewelry provided they are current on the it and Sterling does not object. In re Jensen, 407 B.R. 378 (Bankr. C. Cal. 2008). See also [Vol. 4] Collier on Bankruptcy ¶ 507.02 (Richard Levin & Henry J. Sommer eds., 16th
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ed.)
Sterling, not responding to the motion, has failed to object. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS the request to allow Claim 16-1, in the secure amount of $2,945.49 only, not entitled to distribution from the estate.
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
Fabiola Luna Represented By
Jenny L Doling
Movant(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
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Adv#: 6:19-01117 Whitmore v. Gularte et al
Also #18 EH
Docket 11
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed a Chapter 7 voluntary petition. On August 22, 2019, Robert S. Whitmore (the Chapter 7 "Trustee") brought an adversary proceeding against Jose Gularte ("Mr. Gularte") and Marjorie Elizabeth Gularte-Torres ("Mrs. Gularte-Torres") (collective, "Defendants") for the benefit of the estate.
The adversary proceeding arose from a real estate transaction between the Debtor and the Defendants. Debtor and her spouse, Edgar S. Torres, bought real estate at 1527 Fairwood Way, Upland, CA 91786 (the "Property) on November 2, 1990.
Less than two years before the Petition Date, on December 29, 2017, Debtor and her spouse transferred the Property to Mr. Gularte. Mr. Gularte then proceeded to transfer the deed to himself and his wife, Mrs. Gularte-Torres.
The Trustee alleges that the transfer among the parties is fraudulent and seeks to avoid the transfer and recover the Property for the estate.
The Trustee alleges that Defendants are insiders of the Debtor: Mr. Gularte is the debtor’s son-in-law, and Mrs. Gularte-Torres is the debtor’s daughter. Because Defendants and Debtor still reside at the same Property after the transfers occurred, Trustee alleges that Debtor still retains the benefit of ownership. The Trustee alleges
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that the consideration given was less than a reasonably equivalent value: a seller credit and a gift were given. The Trustee avers that the value of the consideration given was less than the value of the Debtor’s equity of $154,424.76.
The Trustee served the summons and complaint on Defendants by first-class mail to Defendants’ home on August 23, 2019. After forty-eight days without Defendants pleading or defending against the relief sought by the Trustee, the Trustee requested an entry for default judgment. On October 11, 2019, the Clerk of the Court entered a default judgment against defendants.
The Trustee now files this motion for an entry of default judgment by the Court to avoid and recovery the Property.
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C. §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
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Debtor’s lead bankruptcy case (19-bk-14650-MH) is currently pending in this Court.
Personal Jurisdiction
Jose Gularte and Marjorie Elizabeth Gularte-Torres are residents of California.
Thus, personal jurisdiction is proper.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Trustee has fulfilled such requirements in his request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person;
(c) the defendants are not currently on active duty in the armed forces, etc. The Trustee also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b). Thus, the Clerk entered a valid entry of default.
Proper Service of Summons and Complaint
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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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. The Trustee has not asked for the value of the Debtor’s equity in the Property, $154,424.76. Instead, the Trustee has asked the Court to rule that the transfers were fraudulent, the transfers should be avoided, and that the Property should be returned to the Debtor’s bankruptcy estate. Thus, by requesting an injunctive relief, the Trustee has correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitle v. McCool, 782 F.2d 1470, 1471-72
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(9th Cir. 1986). When it comes to the first factor, the Trustee, being the arbiter of the estate would only be prejudice in his responsibility to provide the best interest of parties in interest. That is, by not recovering the property, the creditors would receive potential less than what they could have.
Merits of Plaintiff’s Claim
The general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). "A default establishes the well-pleaded allegations of a complaint unless they are incapable of proof or are contrary to facts judicially noticed or to uncontroverted material in the file." In re McGee, 359 B.R. 764 (B.A.P 9th Cir.) (emphasis added by italicizing) (citing In re Consolidated Pretrial Proceedings in Air West Sec. Litigation, 436 F. Supp. 1281, 1286 (N.D. Cal. 1977)). A well-pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
The Trustee alleges, pursuant to 11U.S.C. § 548(a)(1)(A), that Debtor within two years of filing her petition transferred the Property with actual intent to hinder, delay, or defraud. The word ‘intent’ is used to denote that the actor desire to cause consequences of his act. [Vol 5] Collier on Bankruptcy ¶ [548.04] (Richard Levin & Henry J. Sommer eds., 16th ed.). "If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id.
Because it is difficult to prove actual intent, courts infer fraudulent intent from the circumstances surrounding the transfer; including but not limited to (1) insolvency or other unmanageable indebtedness on the part of the debtor, (2) special relationship between the debtor and transferee; and after the transfer, (3) retention by the debtor of the property. In re Acequia, Inc. 34 F.3d 800 (9th Cir. Ct. App. 1994). These circumstances are universally recognized as the "badges of fraud." Id.
The Trustee has provided evidence that the value of the Property,
$575,000.000, which was agreed upon by Mr. Gularte and Debtor and her
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husband, was not given for consideration. (Dkt. No. 11, Ex. 5). In fact, something substantial less was given as consideration because Mr. Gularte received a "gift of equity" in the amount of $150,900.00. This special relationship—Defendants are the daughter and son-in-law of Debtor— precipitated such a gift alleged the Trustee. Furthermore, based on Debtor’s commencement documents, Debtor still lives at the Property, showing that Debtor still retains the benefit of the Property. (Dkt. No. 11, Ex. 7).
Taken as true and neither incapable of proof nor contrary to facts observed by the Court, the Trustee’s allegations are sufficient to prove the claim of an actual fraudulent transfer under 11 U.S.C § 548(a)(1)(A).
Moreover, taking the allegations of the compliant as true as to the second and third claims for relief, the Trustee has sufficiently alleged the elements of a claim for constructively fraudulent transfer against Defendants.
This leaves only one claim of relief left. Whether the Court grants recovery of the Property pursuant to 11 U.S.C. § 550(a). The Court has ruled that Trustee’s allegations are sufficient to prove that the transfer of the Property was fraudulent. Thus, making the transaction avoidable.
Based on the deeds transferring interest in the Property, Mr. Gularte is an immediate transferee and Mrs. Gularte-Torres is a mediate transferee.
Irrespective of how they are defined, 11 U.S.C. § 550(a)(1) and (a)(2) permit the Trustee to recover the property from the Defendants. Seeing no reason to do otherwise, the Court grants the Trustee the Property pursuant to 11 U.S.C. § 550(a).
Possibility of Disputes of Material Facts
The Trustee provided evidence from the Debtor’s commencement document stating the Debtor still resides at the Property. The Trustee provided evidence of the transfer of interest in the property from Debtor and her husband to Defendants. Dkt No. 11, Ex. 3, 4, and 5. Trustee provided evidence of the value of the Property and the consideration given. Dkt. No. 11, Ex 5.
Furthermore, Trustee duly served Defendants with process in this matter. Thus, the Court finds that the possibility of disputes of material facts is unlikely.
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Sum at Stake in the Action
Even though the Trustee is looking for injunctive relief, the value of said property is significant to the estate. The last consideration given for the Property valued it at $575,000.00. Dkt. No.11, Ex 5. The Property would increase the bankruptcy estate by twenty-fold, weighing in favor of Defendants.
Excusable Neglect
Here, Defendants failed to plead or otherwise defend against the claim, and the Court does not otherwise see any basis for excusable neglect in the pleadings.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
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Thus, the Court is inclined to GRANT the motion to the extent of awarding
Trustee judgment on the first, second, third, and fourth claims of relief.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Movant(s):
Robert S. Whitmore Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
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Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 10/16/19, 12/11/19 Also #17
EH
Docket 1
- NONE LISTED -
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
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Adv#: 6:18-01242 Forniss et al v. Morales et al
EH
Docket 27
BACKGROUND
On September 10, 2018 ("Petition Date"), Stephen Richard Morales ("Debtor") and Diane Forniss Morales ("Joint Debtor) (collectively "Defendants") filed a Chapter 7 voluntary petition. On December 17, 2018, Stephen Forniss ("S. Forniss") and Alfonso Forniss ("A. Forniss") (collectively "Plaintiffs") brought an adversary proceeding against Defendants.
On January 25, 2017, Domingo A Forniss ("D. Forniss") created the Domingo
A. Forniss Revocable Trust ("D. Trust"). D. Trust was created for the benefit of D. Forniss’ children: his two boys, S. Forniss and A. Forniss, and his daughter, Joint Debtor. Each child received a one-third interest in the trust.
Joint Debtor was appointed and acted as trustee for D. Trust. Within a month of the D. Trust formation, D. Forniss had passed away. All of D. Forniss assets were transferred to D. Trust, including D. Forniss’ home located at 9343 Pioneer Boulevard, Santa Fe Springs, Califonia, 90670 (the "Property").
As trustee of the D. Trust, Joint Debtor had the power to administer the trust. She appointed her son, Stephen Morales Jr. ("Junior") as the broker and proceeded to sell the home. Plaintiffs alleged that the home was sold for $345,000.00 and Junior received a commission of $10,200.00.
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Plaintiffs contend that the Property was sold below market rate and evidence
this by stating that the buyer of the Property resold the Property within six months for
$444,000.00, a difference of $99,000.00. Plaintiffs also believed that Junior could have been replaced by other family members, whom were also realtors and would have sold the Property without a commission.
After the Property was sold, Plaintiffs allege that Joint Debtor misappropriated
$44,000.00 and failed to properly account for all the money, jewelry, and silver coins owned by D. Forniss. Joint Debtor admitted that she "distributed $44,000.00 more than her share of [D. Trust]."
A settlement agreement was signed on April 3, 2018, where the parties—A. Forniss, S. Forniss, and Joint Debtor—agreed that Joint Debtor will pay the plaintiffs each $22,000.00. Such payment would be acquired within the next sixty days via a loan with Joint Debtor’s home being collateral for said loan. In return, Plaintiffs will release Joint Debtor of claims arising out of her breach of her fiduciary duties as trustee to D. Trust.
By the time of the Petition Date, Joint Debtor had neither acquired the loan nor paid Plaintiffs. Furthermore, she transferred all her interest in her home to her husband, Debtor. Plaintiffs then filed their adversary proceeding claiming (1) fraud of defalcation while in a fiduciary capacity, (2) embezzlement (3) willful and malicious injury, and (4) Fraud.
On August 27, 2019, after significant time had passed since serving Defendants and after multiple continuation due to settlement negotiations, Plaintiffs requested an entry of Default Judgment. On August 28, 2019, the Clerk of the Court entered a default against defendants.
The Plaintiffs now filed a motion for default judgment praying for the Court to give them relief in the amount of $121,800.00:
Liability Amount
Excess Share of Trust $44,000.00 Plaintiffs share of
commission paid to Junior: 6,800.00 Plaintiffs share of loss of
value of house sold:
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Plaintiffs share of loss of
value of house sold: 66,000.00 Attorney's Fee
(estimated) 5,000.00
Total $121,800.00
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Plaintiffs have asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns determinations as to the dischargeability of particular debts. U.S.C. §157(b)(2)(I).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
Debtors’ lead bankruptcy case (18-bk-17663-MH) is currently pending in this Court.
Personal Jurisdiction
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Defendants have consented to the Court having personal jurisdiction over them because they filed their Chapter 7 voluntary petition in this Court.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Plaintiffs have fulfilled such requirements in their request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person; (c) the defendants are not currently on active duty in the armed forces, etc.
The Plaintiffs also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b).
Thus, the Clerk entered a valid entry of default.
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
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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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. F.R. Civ. P 55 (b)(2). All the amounts asked for by the Plaintiffs except for the value of the loss of the Property can be made certain. The alleged value of the loss to the Property cannot be readily ascertainable from the allegations of the complaint. Thus, the Plaintiffs have correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Prejudice to the Plaintiff
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When it comes to the first factor, if this motion for default judgment is not granted, the Plaintiffs will likely be without other recourse for recovery. United States v. Pac. Design Furniture, Inc., 2015 U.S. Dist. Lexis *4 (C. D. Cal. 2015). This factor weighs in favor of the Plaintiffs.
Merits of Plaintiff’s Claim
As a general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true except those relating to the amount of damages. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). A default establishes the well-pleaded allegations of a complaint unless they are (1) shown to be indefinite or erroneous by other statements in the complaint, (2) contrary to facts of which the court will take judicial notice, (3) not susceptible of proof by legitimate evidence, or (4) contrary to uncontroverted material in the file of the case. Trans World Airlines, Inc. v. Hughes, 38 F.R.D. 499, 501 (S.D.N.Y. 1965). A well- pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
Well-Pleaded Allegations
Plaintiffs allege that Joint Debtor, acting in her capacity as trustee of D. Trust, committed fraud and defalcation. 11 U.S.C. § 523(a)(4). To prove their claim, Plaintiffs must show that (1) Joint Debtor was a fiduciary with respect to the Plaintiffs and (2) Joint Debtor misappropriated trust fund or failed to account fully for the money received. In re Lewis, 97 F.3d 1182, 1186 (9th Cir. 1996).
To determine whether the Joint Debtor was a fiduciary with respect to the Plaintiffs is governed by federal law. Under federal law, such relationship must arise from an express trust imposed before and without reference to the wrongdoing that created the liability. However, State law is consulted to
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determine whether the request trust relationship exists.
Under California law, D. Trust is the type of trust that is clearly define within California Probate Code. Cal. Probate Code § 15200. The duties that were owed to the Plaintiffs as beneficiary of the D. Trust are listed in California Law, including the duty to administer trust property. Cal. Probate Code §§ 16000 -16042. Under California Law, a person named as trustee may accept the trust by knowingly exercising powers or performing duties under the trust instrument. Cal. Probate Code § 15600.
In the settlement agreement, Joint Debtor acknowledge she was the trustee of D. Trust. Dkt. No. 27 Ex 2. In the pleading, Plaintiffs also described how Joint Debtor hired her son, Junior, to sell the Property. Thus, Plaintiffs have shown that Joint Debtor had a fiduciary duty to administer D. Trust, which named them as beneficiaries.
In the same settlement agreement, Joint Debtor admitted she misappropriated $44,000.00. Dkt. No. 27 Ex 2. This fulfilled the elements of defalcation. Thus, pertaining to $44,000.00, Plaintiffs’ well-pleaded allegations are sufficient to prove Joint Debtor is liable pursuant to 11 U.S.C § 523(a)(4).
In addition, the Local Bankruptcy Rule 7056-1(b)(4) allows attorney’s fee when a promissory note, contract, or applicable statute provides a basis for it. The settlement agreement provides for such a recovery. However, the reasonableness of the attorney’s fees will be calculated based upon the amount of the judgment. Local Bankr. R. 7056-1(b)(4)(A).
Indefinite Allegations
On the other hand, Plaintiffs’ allegations against Joint Debtor pertaining to the payment of commission to Junior and the price paid for the Property are insufficient. Plaintiffs neither claimed that Joint Debtor breached any duty in hiring Junior nor paying him a commission. Instead, they stated that a family member would have been willing to sell the Property without commission.
Furthermore, Plaintiffs did not provide any evidence of their claim that
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the Property was sold below market value other than it was resold six months later, and the allegatiosn in the complaint are lacking as to the true value of the Property. Plaintiffs neither stated the condition of the property before it was sold nor alluded whether the new buyer made any improvements to the property before reselling. No market value analysis was provided prior to nor after the property was sold to bolter Plaintiffs’ claim.
C. Possibility of Disputes of Material Facts
Plaintiffs filed a complaint alleging all the elements necessary for them to prevail on their claims. The Court found that only two claims were well-pleaded enough to prevail. Thus, the Court believes that the possibility of a dispute over material facts is low.
D. Sum at Stake in the Action
The Court must consider the amount of money at stake in relations to the seriousness of Defendant’s conduct. PepsiCo, Inc. v. Cal. Sec. Cans, 238,
F. Supp. 2d 1172, 1176 (C. D. Cal. 2002). A larger amount of money in dispute generally weigh against granting default judgment. Id. Joint Debtor knowingly misappropriated money which she knew belong to her brothers. She failed to discharge the duties she owed to the D. Trust and its beneficiaries. Because Plaintiffs asked for money which they believed were deprived from them, this factor weighs in their favor.
Excusable Neglect
Joint Debtor is aware of this proceeding. Defendants and Plaintiffs
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filed a motion to continue status conference so they could continue negotiations. Dkt. No. 12. Thus, Defendants’ failure to answer or defend is unlikely due to excusable neglect.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
Thus, the Court is inclined to GRANT the motion to the extent of awarding Plaintiffs $44,000 pursuant to 11 U.S.C. § 523(a)(4) and $3,240.00 in attorney’s fee pursuant to Local Bankruptcy Rule 7056-1(b)(4)(A).
APPEARANCES REQUIRED.
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Defendant(s):
Stephan Richard Morales Pro Se
Diane Forniss Morales Pro Se
2:00 PM
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Movant(s):
Stephen Forniss Represented By Fritz J Firman
Alfonso Forniss Represented By Fritz J Firman
Plaintiff(s):
Stephen Forniss Represented By Fritz J Firman
Alfonso Forniss Represented By Fritz J Firman
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01242 Forniss et al v. Morales et al
From: 3/6/19, 3/13/19, 5/22/19, 8/28/19, 12/4/19, 12/18/19
Also #19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Defendant(s):
Stephan Richard Morales Pro Se
Diane Forniss Morales Pro Se
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Plaintiff(s):
Stephen Forniss Represented By Fritz J Firman
2:00 PM
Alfonso Forniss Represented By Fritz J Firman
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Docket 72
- 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):
Anis Khalil Pro Se
Plaintiff(s):
Anis Khalil Pro Se
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
2:00 PM
Reem J Bello
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #23 EH
Docket 51
- 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
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Frank X Ruggier
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, 12/12/18, 1/30/19, 2/27/19, 4/10/19, 9/18/19, 10/9/19
Also #22 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
11:00 AM
Also #2 EH
Docket 53
On May 26, 2017 ("Petition Date"), Mario Timothy Velasquez ("Debtor") and Susan Lorraine Velasquez ("Joint Debtor") (collectively, "Debtors") filed for Chapter 13 voluntary petition. On, October 5, 2017, LVNV Funding, LLC ("LVNV") filed a claim based on credit card purchases ("Claim 7-1"). LVNV’s filing stated the amount of Claim 7-1 to be $2,665.92, all of which is unsecured.
On December 4, 2019, the Debtors, through their counsel, filed this motion asking for Claim 7-1 be disallowed because it was time-barred. Debtors allege, pursuant to Californian law, the statute of limitations prevents LVNV from collecting any amount on Claim 7-1.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c)
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(2)(D)(i)-(ii).
LVNV’s filing of Claim 7-1 followed the procedures listed in FRBP 3001(c) (3): (1) the date of the last payment was provided, (2) the date of the account holder’s last transaction, (3) the date on which the account was charged to profit and loss, etc. Dkt. No. 53, Ex. B. Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $2,665.92.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. A chapter 13 debtor is considered a party in interest under 11
U.S.C. § 502(a) to object to claims. [Vol 4] Collier on Bankruptcy ¶ 502.02[2][d] (Richard Levin & Henry J. Sommer eds., 16th ed.). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See also, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
The Debtors as party in interest have standing to file this motion. The Debtors allege, pursuant to California Civil Code §§ 335 and 337, Claim 7-1 is time-barred from collection: more than four years have passed from the last transaction date to the Petition Date. Thus, under the Debtors’ reasoning, Claim 7-1 is unenforceable and should be disallowed.
California Code of Civil Procedure §335 states the period prescribed for the commencement of actions other than for the recovery of real property. The Subdivision then prescribes the statute of limitations, four years, for written obligations. California Code of Civil Procedures §337 specifies when the time shall begin to run. In this instance, because it is unknown how many items were on the
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account, the time shall begin to run from the date of the last item.
Based on LVNV’s filing of Claim 7-1 the last item purchased was on October 18, 1998. Thus, more than eighteen years had passed from when the item was purchased to when the petition was filed. Therefore, the Court has found Claim 7-1 is time-barred.
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.
LVNV, not responding to the motion, has failed to prove the validity of Claim 7-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS the request to disallow Claim 7-1 in its entirety because it is time-barred and unenforceable.
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):
Mario Timothy Velasquez Represented By Paul Y Lee
Joint Debtor(s):
11:00 AM
Susan Lorraine Velasquez Represented By Paul Y Lee
Movant(s):
Mario Timothy Velasquez Represented By Paul Y Lee
Susan Lorraine Velasquez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #1 EH
Docket 54
On May 26, 2017 ("Petition Date"), Mario Timothy Velasquez ("Debtor") and Susan Lorraine Velasquez ("Joint Debtor") (collectively, "Debtors") filed for Chapter 13 voluntary petition. On, October 5, 2017, LVNV Funding, LLC ("LVNV") filed a claim based on credit card purchases ("Claim 8-1"). LVNV’s filing stated the amount of Claim 8-1 to be $6,934.52, all of which is unsecured.
On December 4, 2019, the Debtors, through their counsel, filed this motion asking for Claim 8-1 be disallowed because it was time-barred. Debtors allege, pursuant to Californian law, the statute of limitations prevents LVNV from collecting any amount on Claim 8-1.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a
11:00 AM
claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
LVNV’s filing of Claim 8-1 followed the procedures listed in FRBP 3001(c) (3): (1) the date of the last payment was provided, (2) the date of the account holder’s last transaction, (3) the date on which the account was charged to profit and loss, etc. Dkt. No. 54, Ex. B. Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $6,934.52.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. A chapter 13 debtor is considered a party in interest under 11
U.S.C. § 502(a) to object to claims. [Vol 4] Collier on Bankruptcy ¶ 502.02[2][d] (Richard Levin & Henry J. Sommer eds., 16th ed.). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document); see also, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
The Debtors as party in interest have standing to file this motion. The Debtors allege, pursuant to California Civil Code §§ 335 and 337, Claim 8-1 is time-barred from collection: more than four years have passed from the last transaction date to the Petition Date. Thus, under the Debtors’ reasoning, Claim 8-1 is unenforceable and should be disallowed.
California Code of Civil Procedure §335 states the period prescribed for the commencement of actions other than for the recovery of real property. The Subdivision then prescribes the statute of limitations, four years, for written obligations. California Code of Civil Procedures §337 specifies when the time shall
11:00 AM
begin to run. In this instance, because it is unknown how many items were on the account, the time shall begin to run from the date of the last item.
Based on LVNV’s filing of Claim 8-1 the last item purchased was on October 13, 1999. Thus, more than seventeen years had passed from when the item was purchased to when the petition was filed. Therefore, the Court has found Claim 8-1 is time-barred.
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.
LVNV, not responding to the motion, has failed to prove the validity of Claim 8-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS the request to disallow Claim 8-1 in its entirety because it is time-barred and unenforceable.
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):
Mario Timothy Velasquez Represented By Paul Y Lee
11:00 AM
Joint Debtor(s):
Susan Lorraine Velasquez Represented By Paul Y Lee
Movant(s):
Mario Timothy Velasquez Represented By Paul Y Lee
Susan Lorraine Velasquez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 21
On May 26, 2019 ("Petition Date"), Katrina C. Lambert ("Debtor") filed for Chapter 13 voluntary petition. On, November 1, 2019, Navy Federal Credit Union ("Navy Federal") filed a claim based on credit card purchases ("Claim 3-1"). Navy Federal’s filing stated the amount of Claim 3-1 to be $6,987.07, all of which is unsecured.
On December 2, 2019, the Debtor, through her counsel, filed this motion asking for Claim 3-1 be disallowed because it was time-barred. Debtors allege, pursuant to Californian law, the statute of limitations prevents Navy Federal from collecting any amount on Claim 3-1.
Pursuant to 11 U.S.C. § 501, a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
Navy Federal’s filing of Claim 3-1 followed the procedures listed in FRBP
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3001(c)(3): (1) the date of the last payment was provided, (2) the date of the account holder’s last transaction, (3) the date on which the account was charged to profit and loss, etc. Dkt. No. 21, Pg. 10. Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $6,987.07.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. A chapter 13 debtor is considered a party in interest under 11
U.S.C. § 502(a) to object to claims. [Vol 4] Collier on Bankruptcy ¶ 502.02[2][d] (Richard Levin & Henry J. Sommer eds., 16th ed.). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document); see also, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
The Debtor as a party in interest has standing to file this motion. The Debtor alleges, pursuant to California Civil Code §§ 335 and 337, Claim 3-1 is time-barred from collection: more than four years have passed from the last transaction date to the Petition Date. Thus, under the Debtor’s reasoning, Claim 3-1 is unenforceable and should be disallowed.
California Code of Civil Procedure §335 states the period prescribed for the commencement of actions other than for the recovery of real property. The Subdivision then prescribes the statute of limitations, four years, for written obligations. California Code of Civil Procedures §337 specifies when the time shall begin to run. In this instance, because it is unknown how many items were on the account, the time shall begin to run from the date of the last item.
Based on Navy Federal’s filing of Claim 3-1 the last item purchased was on
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June 8, 2010. Thus, more than nine years had passed from when the item was purchased to when the petition was filed. Therefore, the Court has found Claim 3-1 is time-barred.
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.
Navy Federal, not responding to the motion, has failed to prove the validity of Claim 3-1 by a preponderance of the evidence. Furthermore, pursuant to Local Bankr. Rules 9013-1(f)(3), the failure of a responding party to raise its objection or challenge in a response may be deemed consent. Thus, the Court GRANTS the request to disallow Claim 3-1 in its entirety because it is time-barred and unenforceable.
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):
Katrina C Lambert Represented By David L Nelson
Movant(s):
Katrina C Lambert Represented By David L Nelson David L Nelson
11:00 AM
Trustee(s):
David L Nelson
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/5/19, 10/3/19, 12/5/19 Also #5
EH
Docket 22
- NONE LISTED -
Debtor(s):
Oscar Carrasco De Dios Represented By
Glenn Ward Calsada
Joint Debtor(s):
Sofia P. De Dios Represented By
Glenn Ward Calsada
Movant(s):
Oscar Carrasco De Dios Represented By
Glenn Ward Calsada Glenn Ward Calsada Glenn Ward Calsada
Sofia P. De Dios Represented By
Glenn Ward Calsada Glenn Ward Calsada
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Oscar Carrasco De Dios Represented By
Glenn Ward Calsada
Joint Debtor(s):
Sofia P. De Dios Represented By
Glenn Ward Calsada
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ricardo Barajas Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Dana Lynn Chapman Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rueben Duran Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sonia Salguero Represented By Christopher J Langley
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):
Pablo Cornejo Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael D Albrecht Represented By Paul Y Lee
Joint Debtor(s):
Irene R Albrecht Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tony Andy Garcia II Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Solomon Broadnax Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lori Ann Caruthers Collins Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Isaac Santillan Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Paul Edward Young Jr. Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Cornelius Watson Represented By Todd L Turoci
Joint Debtor(s):
Crystal Tamara Watson Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brian Erik May Represented By Sundee M Teeple
Joint Debtor(s):
Lizabeth Marie Smith Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Larry Gene Walder Represented By Dana Travis
Joint Debtor(s):
Frances Leitha Walder Represented By Dana Travis
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):
Brenadette Schoby Represented By
Dennis A Rasmussen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sean Simon Roseman Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Charles Ballard Represented By Julie J Villalobos
Joint Debtor(s):
Denise J. Ballard Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Manuel Andrade Represented By
J.D. Cuzzolina
Joint Debtor(s):
Cecilia R Andrade Represented By
J.D. Cuzzolina
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 112
- NONE LISTED -
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 98
- 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
Docket 80
- 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 76
- NONE LISTED -
Debtor(s):
Melanie Lourdes Davis Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 142
- NONE LISTED -
Debtor(s):
Rick Gaeta Carreon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 143
- 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 69
- NONE LISTED -
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Polina Manyika Represented By Joel M Feinstein
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 80
- NONE LISTED -
Debtor(s):
Gloria Hayslet Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 117
- NONE LISTED -
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Rushelyn Napalan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 69
- NONE LISTED -
Debtor(s):
Rorye James Mosley Sr. Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 49
- 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 28
- 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
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
Mariama T Jobe Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Yolanda Williams Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Dawn Michele McClure Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Richard Lee Bigham Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Garry Kenneth Frazier Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Frank T. Moore Represented By
Patricia M Ashcraft - SUSPENDED BK - Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Linda Foster Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
John B Jensen Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
- NONE LISTED -
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Daniel Lee Crump Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
EH
Docket 6
Service: Proper—shortened notice Opposition: None
The Court has reviewed the motion, and the service was rendered on shortened notice. Debtor had two Chapter 13 voluntary petitions, case number 16:19-bk-16791-MH ("Prior First Case") and case number 19-bk-12704-MH ("Prior Second Case"), pending within one year. Pursuant to 11 U.S.C. § 362(c)(4)(D)(i), a case is presumed to be filed not in good faith as to all creditors if "2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period…"
A debtor can rebuttal this presumption by clear and convincing evidence. 3 Collier on Bankruptcy ¶ 362.06 (Richard Levin & Henry J. Sommer eds., 16th ed.). "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
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Debtor declared that the reason why the Prior Second Case was dismissed because he "believed he was going to begin working in a position which would enable him to stay current on both his…payments." Dkt No. 7, Pg 3. After the Prior Second Case was filed, the position was no longer available to Debtor. Thus, Debtor did not appear to the Prior Second Case’s 341(a) meeting because he was unable to make the required payment at the meeting.
Debtor stated that the Prior First Case was dismissed because, even though he had a job, he was not earning enough to make his post-petition mortgage payments. Id. at 4. Now, Debtor has a second job, and "anticipates receiving a job offer…for a higher paying position which will enable him to stay current on his position. Id.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor did not provide evidence more than mere statements. He neither provided paystubs of his current employment nor provided detailed and competent evidence to believe he would receive a job offer for a higher paying position.
By his own statements, Debtor’s beliefs have been consistently wrong and have led him to his prior cases being dismissed. Debtor also speculates that he will receive a higher paying job, which is insufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(4) that the case was filed in good faith regarding Debtor being able to post-petition mortgage HOA payments, and future Chapter 13 plan payments. Thus, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
Movant(s):
Robert Joseph Slapp III Represented By
11:00 AM
Trustee(s):
Nicholas M Wajda Nicholas M Wajda
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DAIMLER TRUST
EH
Docket 9
Service: Proper Opposition: None
11 U.S.C. § 365 (d)(1):
"In a case under Chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease…of personal property of the debtor within sixty days after the order for relief [, that is the date the petition was filed]…then such contract or lease is deemed rejected."
In this case, debtor, Tanisha R. Bowden, filed a voluntary, no asset Chapter 7 petition on November 27, 2019. The trustee, Steven M. Speir, has until January 26, 2020, sixty days after the petition was filed, to either reject or assume the lease.
When a lease is deemed rejected, the leased property is no longer property of the estate and the stay under 11 U.S.C § 362(a) is automatically terminated. Thus, the stay will remain until January 26, 2020. Based on the payment default, The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1), GRANT relief
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from Rule 4001(a)(3) stay, GRANT request under ¶ 2, and Deny relief, in the alternative, 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):
Tanisha R Bowden Represented By Paul Y Lee
Movant(s):
Daimler Trust Represented By
Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 18
Service: Proper Opposition: None
By providing the promissory note, the commercial security agreement, the UCC financing statement, current value of the claim, and the value of the property based on the debtor’s Schedule A/B, pursuant to U.S.C. §§ 362(d)(1) and 362(d)(2), the movant, Wells Fargo Bank, N.A. has established that its interest is not adequately protected nor does the Debtors’ have any equity in the property. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982). Total secured claim, $2,110,049.32, is greater than the value of all debtor’s business property, $900,103.00. (Dkt. No. 18, 4).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Here, Debtor is not reorganizing, and Debtor failed to oppose this motion. Thus, pursuant to Local Bankruptcy Rule 9013-(h), the Court may deem this to be consent to the granting or denial of the motion, as the case may be.
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Therefore, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Mike R Investments, Inc. Represented By Craig E Dwyer
Movant(s):
Wells Fargo Bank, N.A. Represented By
Raffi Khatchadourian
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 10
Service: Proper Opposition: None
By providing the retail installment contract security agreement, the certificate of title, the UCC financing statement, current value of the claim, and the value of the properties based on NADA Guides Value Report, pursuant to U.S.C. §§ 362(d)(1) and 362(d)(2), the movant, Bank of America, N.A. has established that its interest is not adequately protected nor does the Debtors’ have any equity in the property. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982). Specifically, the total secured claim,
$2,110,049.32, is greater than the value of all debtor’s business property,
$900,103.00. (Dkt. No. 18, Ex. 4).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors have not opposed this motion, and Debtors intend to surrender the property pursuant to 11
U.S.C. § 521(a)(2). Dkt. No. 1, Statement of Intention.
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In such a case, the stay is not terminated when the Debtors intend to surrender the property. In re Stephens, 2013 Bankr. Lexis 1202, *28 (Bankr. N.D. NY. 2013). Instead, such action, surrendering the property, means relinquishing the debtor’s rights and taking no action to resist any efforts by the creditor to gain possession. Id. 11
U.S.C. § 521(a)(2)(B) requires that the Debtor within thirty days after the first date set for the meeting of creditors perform his intention. The meeting of the creditors was first set on November 15, 2019. Thirty days have passed, and the Debtors have not performed their intention.
Thus, pursuant to § 362(h)(1)(B), the automatic stay is terminated. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
RICHARD JAMES SYLVESTER Represented By
Paul C Nguyen
Joint Debtor(s):
SHARON LEE SYLVESTER Represented By Paul C Nguyen
Movant(s):
Bank of America, N.A. Represented By Robert P Zahradka
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
Docket 19
Service: Proper Opposition: None
By providing the retail installment sale contract, the certificate of title, the UCC financing statement, and the current value of the claim, pursuant to U.S.C. § 362(d) (1), the movant, Americredit Financial Services, Inc., doing business as GM Financial, has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor have not opposed the motion, and Debtors intend to surrender the property pursuant to the confirmation of their plan. 11 U.S.C. § 1325(a)(5)(C). Dkt. No. 15.
In such a case, the stay is terminated when the plan is confirmed. The plan not being confirmed at the pending of this motion continues the stay as to this property.
11:00 AM
Nonetheless, pursuant to Local Bankruptcy Rule 9013-h, Debtor has failed to file a response to this motion; thus, the Court may deem this to be consent to the granting or denial of the motion, as the case may be. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay.
GRANT request under ¶ 2. Deny, in the alternative, request under ¶ 11 as being 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):
Craig Edward Williams Represented By Julie J Villalobos
Joint Debtor(s):
Norma Geneva Williams Represented By Julie J Villalobos
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
From: 11/19/19, 12/17/19 EH
Docket 22
Service is Proper Opposition: Yes
Movant to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Sara Rolston Represented By
Paul Y Lee
Movant(s):
BMW Bank of North America Represented By Cheryl A Skigin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 30
Service: Proper Opposition: Debtors
Parties to update Court as to status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Donald Ray Levier Jr. Represented By
D Justin Harelik
Joint Debtor(s):
Antoinette Marie Levier Represented By
D Justin Harelik
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 25
Service: Proper Opposition: None
By providing the NADA value for the property, the retail installment sale contract, and the accounting of what is owed by Debtor, pursuant to U.S.C. §§ 362(d)(1) and 362(d)(2), the movant, Nissan Motor Acceptance Corporation, has established that its interest is not adequately protected nor does the Debtor have any equity in the property. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982). Specifically, the total secured claim, $16,960.29, is greater than the value of the property, $7,475.00. (Dkt. No. 25, Ex 3, 4).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor failed to oppose this motion. Thus, pursuant to Local Bankruptcy Rule 9013-(h), the Court may deem this to be consent to the granting or denial of the motion, as the case may be.
11:00 AM
Therefore, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. Deny, in the 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):
Ernesto Jesus Mercado Represented By
Ramiro Flores Munoz
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
92336-3451
MOVANT: CSMC 2018-RPL11 TRUST
EH
Docket 47
- NONE LISTED -
Debtor(s):
Charlena Clark Represented By William Radcliffe
Movant(s):
CSMC 2018-RPL11 Trust Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 75
Service: Proper Opposition: Debtors
Debtors filed their Chapter 13 plan, and it was later confirmed on April 18, 2018. Movant, Lakeview Loan Servicing (hereinafter "Lakeview") had a claim secured only by security interest in real property constituting Debtors’ principal residence. Such a creditor’s claim is not subject to modification under Chapter 13 Plan. 11 U.S.C. § 1322(b)(2). However, a creditor of such a claim is stayed from the collection of its claim, from taking possession of the real property encumbered by the lien, and from the enforcement of its lien. 11 U.S.C § 362(a)(1)-(5).
Debtors, pursuant to their Chapter 13 plan, stated that they will maintain and make the current contractual installments payments on Lakeview’s claim. Dkt. No. 2. Lakeview has filed this motion from relief from stay based on Debtors failure to make post- petition mortgage payments pursuant to Debtors’ Chapter 13 plan.
By providing the note, the deed of trust, the corporate assignment of deed, and the post-petition history, pursuant to U.S.C. § 362(d)(1), Lakeview has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir.
1982).
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The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors, in their opposition to granting this motion, state that they will be selling their home. Dkt. No. 77.
Debtors to update Court as to sale status. APPEARANCES REQUIRED.
Debtor(s):
Eddie Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Martha Garcia 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
11:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
From: 12/17/19 EH
Docket 34
Service: Proper Opposition: Debtor
The parties to apprise the court on status of default and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Valecia Renee Knox Represented By
L. Tegan Rodkey
Movant(s):
Wilmington Trust, National Represented By Dipika Parmar
11:00 AM
Trustee(s):
Darlene C Vigil
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 78
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Crossroads Equipment Lease & Represented By Glenn R Bronson
2:00 PM
Also #14 EH
Docket 179
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18, 8/21/18, 10/23/18, 11/27/18, 2/5/19, 5/7/19, 7/30/19, 10/8/19, 10/29/19
Also #13 EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
11:00 AM
Docket 27
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 Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,356.30 Trustee Expenses: $ 4.30
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):
Serapio Padilla Represented By Todd L Turoci
Joint Debtor(s):
Lisette Padilla Represented By Todd L Turoci
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 65
- NONE LISTED -
Debtor(s):
Richard Evans Represented By Lane K Bogard
Joint Debtor(s):
Deborah Evans Represented By Lane K Bogard
Movant(s):
Lynda T. Bui (TR) Represented By Erin P Moriarty
Trustee(s):
Lynda T. Bui (TR) Represented By Erin P Moriarty
11:00 AM
EH
Docket 258
On March 20, 2013, David & Elise Wakefield ("Debtors") filed a Chapter 7 voluntary petition. The deadline for filing proofs of claims was set as February 18, 2014.
On June 3, 2013, James Hundley filed a proof of claim for an unsecured claim in the amount of $101,947.17 ("Claim 3"). Claim 3 states that it is based on a commercial lease, but no supporting documentation is attached. On December 6, 2013, Mark Felipe & Bryan Schimmel filed a proof of claim for an unsecured claim in the amount of $665,000 ("Claim 10"). Claim 10 states that it is based on breach of contract and fraud. Attached to Claim 10 is a complaint filed in state court on July 6, 2012. On December 11, 2013, the Riverside County Tax Collector filed a proof of claim for an unsecured claim in the amount of $33,407.42 ("Claim 11"). Claim 11 states that it is based on "secured property taxes." On January 3, 2014, Fidelity National Title Insurance Company filed a proof of claim for an unsecured claim in the amount of
$330,662 ("Claim 13"). Claim 13 states that it is based on a judgment entered on September 20, 2011. Attached to Claim 13 is a judgment and assignment of judgment entered against Pasadena Business Center, LLC. The Court takes judicial notice, pursuant to FED. R. EVID. Rule 201(b), of the California Secretary of State registration
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for Pasadena Business Center, LLC and notes that the entity is now suspended, but appears to have been solely owned and operated by David Wakefield.
On December 13, 2019, Trustee filed objections to Claim 3, Claim 10, Claim 11, and Claim 13. Trustee objections to those claims on the basis that: (a) Claim 3 does not contain any supporting documentation; (b) Claim 10 only includes a copy of a state court complaint which Trustee asserts was dismissed shortly after Claim 10 was filed;
(c) Debtors are not personally liable for Claim 11; and (d) there is no evidence that Debtors are personally liable for Claim 13. The Court notes that Claim 11 was withdrawn on December 26, 2019.
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
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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)(1) states: "Except for a claim governed by paragraph
of this subdivision, when a 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." FED. R. BANKR. P. Rule 3001(f) states: "A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." By implications, claim which are not filed in accordance with Rule 3001 are not entitled to prima facie validity. See, e.g., In re Heath, 331 B.R. 424 (B.A.P. 9th Cir. 2005).
Regarding Claim 3, the filed proof of claim states that it is based on a commercial lease but no supporting writing or documentation is attached. Trustee has attached to the objection to Claim 3 a ledger receiving from Krista Hundley which itemizes the amount owing, as well as an e-mail correspondence showing that Trustee requested a copy of the lease in October. Because Claim 3 did not attach the commercial lease, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Furthermore, it appears that Claim 3 misidentifies the creditor as James Hundley when the appropriate creditor may be Management Properties, Inc; the ledger submitted by Trustee does not establish any claim owing to James Hundley.
Given these issues, and noting that James Hundey and/or Management Properties, Inc.
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have failed to respond to Trustee in a timely fashion and have failed to oppose the instant claim objection, which the Court deems consent pursuant to Local Rule 9013-1(h), the Court is inclined to sustain the objection to Claim 3.
Regarding Claim 10, the filed proof of claim states that it is based on fraud and breach of contract, and the attached state court complaint references certain written agreements underpinning the complaint. Because Claim 10 did not attach the underlying written agreements, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Trustee has provided a copy of the state court docket for the action which shows that the complaint was dismissed as to David Wakefield in December 2013. Additionally, Trustee has provided a copy of e-mail correspondence with the attorney who filed Claim 10 in which it is stated that the filer does not have authorization to oppose the claim objection. Noting that the state court complaint was dismissed as to David Wakefield, the Court concludes that the preponderance of the evidence does not support Claim 10. Additionally, the Court construes the failure to oppose of Mark Felipe & Bryan Schimmel to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Regarding Claim 11, the Court notes that the Riverside County Tax Collector withdrew Claim 11 on December 26, 2019. While FED. R. BANKR. P. Rule 3006 prohibits a creditor from withdrawing a filed proof of claim after the filing of a claim objection, the Court will construe the withdrawal of Claim 11, and failure to oppose the claim objection, and consent to the relief requested pursuant to Local Rule
9013-1(h).
Regarding Claim 13, the Court notes that Fidelity National Title Insurance Company has provided evidence that they hold a judgment against a limited liability company which was formally owned and operated by David Wakefield. Nevertheless, the general rule that a manager is not liability for the debts of an LLC would suggest that Debtors are not liable for Claim 13. In the absence of any additional supporting information or opposition from Fidelity National Title Insurance Company, the Court
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is inclined to conclude that Trustee’s argument that Claim 13 does not allege any personal liability of Debtors is sufficient to rebut the prima facie validity of Claim 13.
The Court is inclined to SUSTAIN the objections, DISALLOWING Claim 3, Claim 10, Claim 11, and Claim 13.
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 Wayne Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Joint Debtor(s):
Elise Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Movant(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
Also #3 - #6 EH
Docket 261
On March 20, 2013, David & Elise Wakefield ("Debtors") filed a Chapter 7 voluntary petition. The deadline for filing proofs of claims was set as February 18, 2014.
On June 3, 2013, James Hundley filed a proof of claim for an unsecured claim in the amount of $101,947.17 ("Claim 3"). Claim 3 states that it is based on a commercial lease, but no supporting documentation is attached. On December 6, 2013, Mark Felipe & Bryan Schimmel filed a proof of claim for an unsecured claim in the amount of $665,000 ("Claim 10"). Claim 10 states that it is based on breach of contract and fraud. Attached to Claim 10 is a complaint filed in state court on July 6, 2012. On December 11, 2013, the Riverside County Tax Collector filed a proof of claim for an unsecured claim in the amount of $33,407.42 ("Claim 11"). Claim 11 states that it is based on "secured property taxes." On January 3, 2014, Fidelity National Title Insurance Company filed a proof of claim for an unsecured claim in the amount of
$330,662 ("Claim 13"). Claim 13 states that it is based on a judgment entered on September 20, 2011. Attached to Claim 13 is a judgment and assignment of judgment entered against Pasadena Business Center, LLC. The Court takes judicial notice,
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pursuant to FED. R. EVID. Rule 201(b), of the California Secretary of State registration for Pasadena Business Center, LLC and notes that the entity is now suspended, but appears to have been solely owned and operated by David Wakefield.
On December 13, 2019, Trustee filed objections to Claim 3, Claim 10, Claim 11, and Claim 13. Trustee objections to those claims on the basis that: (a) Claim 3 does not contain any supporting documentation; (b) Claim 10 only includes a copy of a state court complaint which Trustee asserts was dismissed shortly after Claim 10 was filed;
(c) Debtors are not personally liable for Claim 11; and (d) there is no evidence that Debtors are personally liable for Claim 13. The Court notes that Claim 11 was withdrawn on December 26, 2019.
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
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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)(1) states: "Except for a claim governed by paragraph
(3) of this subdivision, when a 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." FED. R. BANKR. P. Rule 3001(f) states: "A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." By implications, claim which are not filed in accordance with Rule 3001 are not entitled to prima facie validity. See, e.g., In re Heath, 331 B.R. 424 (B.A.P. 9th Cir. 2005).
Regarding Claim 3, the filed proof of claim states that it is based on a commercial lease but no supporting writing or documentation is attached. Trustee has attached to the objection to Claim 3 a ledger receiving from Krista Hundley which itemizes the amount owing, as well as an e-mail correspondence showing that Trustee requested a copy of the lease in October. Because Claim 3 did not attach the commercial lease, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Furthermore, it appears that Claim 3 misidentifies the creditor as James Hundley when the appropriate creditor may be Management Properties, Inc; the ledger submitted by Trustee does not establish any claim owing to James Hundley.
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Given these issues, and noting that James Hundey and/or Management Properties, Inc. have failed to respond to Trustee in a timely fashion and have failed to oppose the instant claim objection, which the Court deems consent pursuant to Local Rule
9013-1(h), the Court is inclined to sustain the objection to Claim 3.
Regarding Claim 10, the filed proof of claim states that it is based on fraud and breach of contract, and the attached state court complaint references certain written agreements underpinning the complaint. Because Claim 10 did not attach the underlying written agreements, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Trustee has provided a copy of the state court docket for the action which shows that the complaint was dismissed as to David Wakefield in December 2013. Additionally, Trustee has provided a copy of e-mail correspondence with the attorney who filed Claim 10 in which it is stated that the filer does not have authorization to oppose the claim objection. Noting that the state court complaint was dismissed as to David Wakefield, the Court concludes that the preponderance of the evidence does not support Claim 10. Additionally, the Court construes the failure to oppose of Mark Felipe & Bryan Schimmel to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Regarding Claim 11, the Court notes that the Riverside County Tax Collector withdrew Claim 11 on December 26, 2019. While FED. R. BANKR. P. Rule 3006 prohibits a creditor from withdrawing a filed proof of claim after the filing of a claim objection, the Court will construe the withdrawal of Claim 11, and failure to oppose the claim objection, and consent to the relief requested pursuant to Local Rule
9013-1(h).
Regarding Claim 13, the Court notes that Fidelity National Title Insurance Company has provided evidence that they hold a judgment against a limited liability company which was formally owned and operated by David Wakefield. Nevertheless, the general rule that a manager is not liability for the debts of an LLC would suggest that Debtors are not liable for Claim 13. In the absence of any additional supporting
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information or opposition from Fidelity National Title Insurance Company, the Court is inclined to conclude that Trustee’s argument that Claim 13 does not allege any personal liability of Debtors is sufficient to rebut the prima facie validity of Claim 13.
The Court is inclined to SUSTAIN the objections, DISALLOWING Claim 3, Claim 10, Claim 11, and Claim 13.
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 Wayne Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Joint Debtor(s):
Elise Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Movant(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
Also #3 - #6 EH
Docket 264
On March 20, 2013, David & Elise Wakefield ("Debtors") filed a Chapter 7 voluntary petition. The deadline for filing proofs of claims was set as February 18, 2014.
On June 3, 2013, James Hundley filed a proof of claim for an unsecured claim in the amount of $101,947.17 ("Claim 3"). Claim 3 states that it is based on a commercial lease, but no supporting documentation is attached. On December 6, 2013, Mark Felipe & Bryan Schimmel filed a proof of claim for an unsecured claim in the amount of $665,000 ("Claim 10"). Claim 10 states that it is based on breach of contract and fraud. Attached to Claim 10 is a complaint filed in state court on July 6, 2012. On December 11, 2013, the Riverside County Tax Collector filed a proof of claim for an unsecured claim in the amount of $33,407.42 ("Claim 11"). Claim 11 states that it is based on "secured property taxes." On January 3, 2014, Fidelity National Title Insurance Company filed a proof of claim for an unsecured claim in the amount of
$330,662 ("Claim 13"). Claim 13 states that it is based on a judgment entered on September 20, 2011. Attached to Claim 13 is a judgment and assignment of judgment entered against Pasadena Business Center, LLC. The Court takes judicial notice,
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pursuant to FED. R. EVID. Rule 201(b), of the California Secretary of State registration for Pasadena Business Center, LLC and notes that the entity is now suspended, but appears to have been solely owned and operated by David Wakefield.
On December 13, 2019, Trustee filed objections to Claim 3, Claim 10, Claim 11, and Claim 13. Trustee objections to those claims on the basis that: (a) Claim 3 does not contain any supporting documentation; (b) Claim 10 only includes a copy of a state court complaint which Trustee asserts was dismissed shortly after Claim 10 was filed;
(c) Debtors are not personally liable for Claim 11; and (d) there is no evidence that Debtors are personally liable for Claim 13. The Court notes that Claim 11 was withdrawn on December 26, 2019.
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
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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)(1) states: "Except for a claim governed by paragraph
(3) of this subdivision, when a 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." FED. R. BANKR. P. Rule 3001(f) states: "A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." By implications, claim which are not filed in accordance with Rule 3001 are not entitled to prima facie validity. See, e.g., In re Heath, 331 B.R. 424 (B.A.P. 9th Cir. 2005).
Regarding Claim 3, the filed proof of claim states that it is based on a commercial lease but no supporting writing or documentation is attached. Trustee has attached to the objection to Claim 3 a ledger receiving from Krista Hundley which itemizes the amount owing, as well as an e-mail correspondence showing that Trustee requested a copy of the lease in October. Because Claim 3 did not attach the commercial lease, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Furthermore, it appears that Claim 3 misidentifies the creditor as James Hundley when the appropriate creditor may be Management Properties, Inc; the ledger submitted by Trustee does not establish any claim owing to James Hundley.
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Given these issues, and noting that James Hundey and/or Management Properties, Inc. have failed to respond to Trustee in a timely fashion and have failed to oppose the instant claim objection, which the Court deems consent pursuant to Local Rule
9013-1(h), the Court is inclined to sustain the objection to Claim 3.
Regarding Claim 10, the filed proof of claim states that it is based on fraud and breach of contract, and the attached state court complaint references certain written agreements underpinning the complaint. Because Claim 10 did not attach the underlying written agreements, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Trustee has provided a copy of the state court docket for the action which shows that the complaint was dismissed as to David Wakefield in December 2013. Additionally, Trustee has provided a copy of e-mail correspondence with the attorney who filed Claim 10 in which it is stated that the filer does not have authorization to oppose the claim objection. Noting that the state court complaint was dismissed as to David Wakefield, the Court concludes that the preponderance of the evidence does not support Claim 10. Additionally, the Court construes the failure to oppose of Mark Felipe & Bryan Schimmel to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Regarding Claim 11, the Court notes that the Riverside County Tax Collector withdrew Claim 11 on December 26, 2019. While FED. R. BANKR. P. Rule 3006 prohibits a creditor from withdrawing a filed proof of claim after the filing of a claim objection, the Court will construe the withdrawal of Claim 11, and failure to oppose the claim objection, and consent to the relief requested pursuant to Local Rule
9013-1(h).
Regarding Claim 13, the Court notes that Fidelity National Title Insurance Company has provided evidence that they hold a judgment against a limited liability company which was formally owned and operated by David Wakefield. Nevertheless, the general rule that a manager is not liability for the debts of an LLC would suggest that Debtors are not liable for Claim 13. In the absence of any additional supporting
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information or opposition from Fidelity National Title Insurance Company, the Court is inclined to conclude that Trustee’s argument that Claim 13 does not allege any personal liability of Debtors is sufficient to rebut the prima facie validity of Claim 13.
The Court is inclined to SUSTAIN the objections, DISALLOWING Claim 3, Claim 10, Claim 11, and Claim 13.
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 Wayne Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Joint Debtor(s):
Elise Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Movant(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
Also #3 - #5 EH
Docket 267
On March 20, 2013, David & Elise Wakefield ("Debtors") filed a Chapter 7 voluntary petition. The deadline for filing proofs of claims was set as February 18, 2014.
On June 3, 2013, James Hundley filed a proof of claim for an unsecured claim in the amount of $101,947.17 ("Claim 3"). Claim 3 states that it is based on a commercial lease, but no supporting documentation is attached. On December 6, 2013, Mark Felipe & Bryan Schimmel filed a proof of claim for an unsecured claim in the amount of $665,000 ("Claim 10"). Claim 10 states that it is based on breach of contract and fraud. Attached to Claim 10 is a complaint filed in state court on July 6, 2012. On December 11, 2013, the Riverside County Tax Collector filed a proof of claim for an unsecured claim in the amount of $33,407.42 ("Claim 11"). Claim 11 states that it is based on "secured property taxes." On January 3, 2014, Fidelity National Title Insurance Company filed a proof of claim for an unsecured claim in the amount of
$330,662 ("Claim 13"). Claim 13 states that it is based on a judgment entered on September 20, 2011. Attached to Claim 13 is a judgment and assignment of judgment entered against Pasadena Business Center, LLC. The Court takes judicial notice,
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pursuant to FED. R. EVID. Rule 201(b), of the California Secretary of State registration for Pasadena Business Center, LLC and notes that the entity is now suspended, but appears to have been solely owned and operated by David Wakefield.
On December 13, 2019, Trustee filed objections to Claim 3, Claim 10, Claim 11, and Claim 13. Trustee objections to those claims on the basis that: (a) Claim 3 does not contain any supporting documentation; (b) Claim 10 only includes a copy of a state court complaint which Trustee asserts was dismissed shortly after Claim 10 was filed;
Debtors are not personally liable for Claim 11; and (d) there is no evidence that Debtors are personally liable for Claim 13. The Court notes that Claim 11 was withdrawn on December 26, 2019.
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
11:00 AM
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)(1) states: "Except for a claim governed by paragraph
(3) of this subdivision, when a 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." FED. R. BANKR. P. Rule 3001(f) states: "A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." By implications, claim which are not filed in accordance with Rule 3001 are not entitled to prima facie validity. See, e.g., In re Heath, 331 B.R. 424 (B.A.P. 9th Cir. 2005).
Regarding Claim 3, the filed proof of claim states that it is based on a commercial lease but no supporting writing or documentation is attached. Trustee has attached to the objection to Claim 3 a ledger receiving from Krista Hundley which itemizes the amount owing, as well as an e-mail correspondence showing that Trustee requested a copy of the lease in October. Because Claim 3 did not attach the commercial lease, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Furthermore, it appears that Claim 3 misidentifies the creditor as James Hundley when the appropriate creditor may be Management Properties, Inc; the ledger submitted by Trustee does not establish any claim owing to James Hundley.
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Given these issues, and noting that James Hundey and/or Management Properties, Inc. have failed to respond to Trustee in a timely fashion and have failed to oppose the instant claim objection, which the Court deems consent pursuant to Local Rule
9013-1(h), the Court is inclined to sustain the objection to Claim 3.
Regarding Claim 10, the filed proof of claim states that it is based on fraud and breach of contract, and the attached state court complaint references certain written agreements underpinning the complaint. Because Claim 10 did not attach the underlying written agreements, it was not filed in accordance with Rule 3001(c)(1) and is, therefore, not entitled to prima facie validity. Trustee has provided a copy of the state court docket for the action which shows that the complaint was dismissed as to David Wakefield in December 2013. Additionally, Trustee has provided a copy of e-mail correspondence with the attorney who filed Claim 10 in which it is stated that the filer does not have authorization to oppose the claim objection. Noting that the state court complaint was dismissed as to David Wakefield, the Court concludes that the preponderance of the evidence does not support Claim 10. Additionally, the Court construes the failure to oppose of Mark Felipe & Bryan Schimmel to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Regarding Claim 11, the Court notes that the Riverside County Tax Collector withdrew Claim 11 on December 26, 2019. While FED. R. BANKR. P. Rule 3006 prohibits a creditor from withdrawing a filed proof of claim after the filing of a claim objection, the Court will construe the withdrawal of Claim 11, and failure to oppose the claim objection, and consent to the relief requested pursuant to Local Rule
9013-1(h).
Regarding Claim 13, the Court notes that Fidelity National Title Insurance Company has provided evidence that they hold a judgment against a limited liability company which was formally owned and operated by David Wakefield. Nevertheless, the general rule that a manager is not liability for the debts of an LLC would suggest that Debtors are not liable for Claim 13. In the absence of any additional supporting
11:00 AM
information or opposition from Fidelity National Title Insurance Company, the Court is inclined to conclude that Trustee’s argument that Claim 13 does not allege any personal liability of Debtors is sufficient to rebut the prima facie validity of Claim 13.
The Court is inclined to SUSTAIN the objections, DISALLOWING Claim 3, Claim 10, Claim 11, and Claim 13.
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 Wayne Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Joint Debtor(s):
Elise Wakefield Represented By Jordan Nils Bursch
Robert E Huttenhoff
Movant(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
EH
Docket 17
- NONE LISTED -
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:19-01129 Roche v. Anderson
From: 12/4/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Bruce Vermille Anderson Pro Se
Defendant(s):
Bruce Vermile Anderson Pro Se
Plaintiff(s):
Kevin Michael Roche Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:18-01237 G Hurtado Construction, Inc. v. Catano et al
From: 2/5/19, 6/5/19, 6/26/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Defendant(s):
Juan Catano Pro Se
Faustino Magana Pro Se
Donahoo & Associates, PC Pro Se
Plaintiff(s):
G Hurtado Construction, Inc. Represented By Michael Jones
2:00 PM
Adv#: 6:19-01165 Cisneros v. David
EH
Docket 1
- NONE LISTED -
Debtor(s):
Lauren David Represented By Salvatore Bommarito
Defendant(s):
Anthony J David Pro Se
Plaintiff(s):
A. Cisneros Represented By
Carmela Pagay
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:19-01122 Whitmore v. Labor Commissioner of the State of California
From: 11/6/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Labor Commissioner of the State of Represented By
Melvin Yee
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#: 6:12-01498 Morschauser v. Continental Capital LLC et al
From: 11/13/19, 12/17/19 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
2:00 PM
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
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, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19
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
2:00 PM
Stacy Winn Represented By
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#: 6:18-01138 Speier v. Conestoga Settlement Services, LLC et al
From: 11/20/19, 12/4/19 EH
Docket 77
On June 29, 2016, John E. Tackett and Ellen O. Tackett (collectively "Debtors") filed a Chapter 7 voluntary petition. As part of their petition, Debtors were appointed Steven M. Speier, their ("Trustee"). The Trustee filed an adversary proceeding against Conestoga Settlement Services, LLC, a Delaware Corporation, et al (collectively "Defendants"), including Michael Woods ("Woods") and Jeff Converse ("Converse"), roughly two years later, June 20, 2018.
Debtors’ claim against Defendants arose from an allegedly unsuited investment. In 2012, Ellen O. Tackett ("Mrs. Tackett") inherited an interest in property located at 716 Bayonne Street, El Segundo, California (the "Property"), along with her sibling, Evelyn. Evelyn paid Mrs. Tackett, through a loan, $300,000 for her interest. $50,000 of the payment went to Debtors’ debts, home repairs, and other miscellaneous expenses, leaving $250,000.
In April 2012, Debtors meet Converse in Las Vegas at a weekend-long Amway convention. Debtors were acquainted with Converse from prior Amway related interactions. A conversation developed amongst the parties. Converse brought- up an opportunity to invest in life settlements with John Tackett ("Mr. Tackett").
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Converse and Mr. Tackett agreed to continue the conversation at a later date.
Later in the month, Converse met Debtors at a Panera Bread in Riverside, California. During the meeting, Converse stated he was a selling agent for Conestoga Settlement Services, LLC, ("Conestoga") and discussed Conestoga’s life settlement investment opportunities:
"[I]n a life settlement contract, the beneficiary under a life insurance policy sells his or her interest to a third party, who in turns becomes the beneficiary who will receive the insurance benefit when the insured dies. The purchaser effectively wagers that the insured will die soon enough that the total of the cash paid to acquire the policy, plus the premiums that must be paid to keep the policy in force, will be less than the ultimate death benefit, yielding a positive return." (Ellen O. Tackett Decl., ¶6; John E. Tackett Decl., ¶4.)
Converse stated several Amway Diamonds—Amway distributors who had achieved a certain level of success—were making life settlement investments. Converse then mentioned Woods, an Amway Diamond who resided in Texas, with whom Debtors were familiar with, was involved with Conestoga. Converse did qualify this investment opportunity by stating that it may not be suitable for Debtors and he would have to talk to his supervisors about their participation.
After two to five days later, Converse called the Debtors and informed them that they were qualified and approved by his "supervisors." Another meeting took place in late April or early May. At this meeting, Converse stated that his "supervisors" would prefer that Debtors invest
$250,000 that Mrs. Tackett’s received for her interest in the inherited Property. Debtors did not state how Converse was aware of such funds being available to them.
A third meeting was arranged. At this meeting, Debtors had questions about information presented to them in the prior meeting. Converse explained that the investment would be for the purchase of a percentage of each policy, and a portion of the fund would be held in a reserve account in case the insured outlived his or her life expectancy dates.
Converse stated that there was approximately five years of premium
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monies that would be held in an escrow amount on each policy. After the insured passed away, Converse told Debtors the money in the escrow account would be returned to them or reinvested into other policies.
Another meeting was arranged for Debtors to sign the contract ("Life Settlement Agreement") and purchase interest in the life policies. When Converse arrived, he told the Debtors that he was rushing because he had booked another meeting too close in time with that of Debtors. Without thoroughly reviewing the Life Settlement Agreement, Debtors signed parts of the contract that were tagged in advance by Converse or another party and deposited $30,000 to Converse.
The contract indicated that Debtors became fractional owners of eight policies with premium ranging from 75 to 85.5 months. Since Converse stated that life expectancies for the insured were less than 55 months, Debtors were at ease with this margin. A fifth meeting took place where Debtors deposited $220,000 with Converse.
In 2013, Mr. Tackett, employed as a probation officer, was injured in a ground defense training class. The injury, unfortunately serious, drastically reduced his ability to work. Mrs. Tackett, the sole caretaker of Mr. Tackett, was unable to substitute Mr. Tackett’s income. This led to Debtors filing for bankruptcy.
On January 16, 2017, Conestoga sent Debtors a notice, informing them that money in the reserve account had been depleted. Pursuant to the Life Settlement Agreement, for Debtors to maintain their interest in their life policies, they would have to contribute their pro-rate share of the premiums due. On February 13, 2017, Trustee’s counsel, being aware of this notice, notified Conestoga, through a letter, of the automatic stay and the consequences of violating it.
On February 20, 2017, Conestoga’s counsel communicated he had received the notice and proposed to buy Debtors’ interest. Unfortunately, the parties were unable to negotiate a settlement.
Since the initial notice given to Debtors about the premium call, eight of the nine policies, the insured had outlived his or her life expectancy. However, Debtors believe that the premium calls were premature. After reviewing the Life Settlement Agreement, Debtors, because Woods name appeared at the top of the coverage page under "Independent Contractor," believe Woods is the supervisor Converse alluded to. Trustee now files a motion asking for the court to grant a default judgment against
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Woods.
Trustee filed an adversary proceeding against Defendants on June 20, 2018, which was timely served. Defendants had until July 20, 2018 to file and serve a written response to the Trustee’s complaint. Defendants filed a response, asking for the court to dismiss the case, on July 30, 2019.
Trustee then filed a request for the clerk to enter a default judgment due to the untimely response of the Defendants. The clerk obliged, entering a default judgment against Defendants on August 8, 2018. Conestoga Settlement Services, LLC; Conestoga International, LLC; and Conestoga Trust (collectively, "Conestoga Entities") disputed that the service was proper. On September 7, 2018, Trustee and Conestoga Entities agreed that the Trustee would set aside the default judgment if they accept service as proper. The stipulation agreement was granted, and Conestoga Entities had until September 28, 2018 to file their response.
Conestoga Entities filed an answer to the complaint on October 1, 2018 and asked for extending time to respond to the complaint. The motion was granted on October 12, 2018. Conestoga Entities did not file another answer. Roughly a year later, Trustee filed this motion, requesting a default judgment against Woods.
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
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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 appears that the motion for default judgment has been properly served.
Complaint as True
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) (stating that when reviewing a motion for default judgment, the Court must accept the well-pleaded allegations of the complaint relating to liability as true.).
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Jurisdiction
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
Debtors’ lead bankruptcy case (16-15813) is currently pending in this Court.
Personal Jurisdiction
Personal Jurisdiction of an out-of-state defendant is appropriate if the relevant state’s long arm-statue permits the assertion of jurisdiction without violating federal due process. Schwarzenegger v. Fred Martin Motor Co. 374, F.3d 797, 800 (9th Cir. 2004). Due process requires that non-residents have certain "minimum contacts" with
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the forum state. Int’l Shoe Co. v. Washington, 326. U.S. 310, 316 (1945).
In California the Ninth Circuit has articulated a three-prong test:
the non-resident defendant must purposefully direct his activities or consummate some transaction in the forum or resident thereof, or perform some act by which it purposeful avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of forum’s laws;
the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
the exercise of jurisdiction must comport with the fair play and substantial justice. Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987).
Purposeful Direction
To determine if the first prong is satisfied, because the Trustee alleges fraud, a purposeful direction analysis must be used. Schwarzenegger, 374 F.3d at 802 (stating that purposeful direction analysis is used in tort-related claims). A three part-test is utilized in the purposeful analysis—the Calder- effects test. Calder v. Jones, 465 U.S. 783 (1984). Under this test, the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, and (3) causing harm that the defendant know is likely to be suffered in the forum state. Id.
Accepting all the allegations as true in the Trustee complaint, the Court finds that Woods, involved with Conestoga in some manner, with Converse, defrauded Californians into purchasing investments unsuitable for them.
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Forum Related Activities
The second prong requires that the Trustee’s claim shows that Debtors would not have been injured "but for" the defendant’s forum-related conduct. Myers v. Bennet Law Offices, 238 F.3d 1068, 1075 (9th Cir. 2001). Trustee claims that Debtors would not have suffered injury but for Converse’s conduct, who is believed to be an agent of Woods.
Reasonableness
The third prong requires that the court consider seven factors:
The extent of defendant’s purposeful interjection;
the burden on defendant in defending in the forum;
the extent of conflict with the sovereignty of defendant’s state;
the forum state’s interest in adjudicating the suit;
the most efficient judicial resolution of the controversy;
the importance of the forum to the plaintiff’s interest in convenient and effective relief; and
the existence of an alternative forum. Core-Vent Corp. v. Nobel Indust. AB, 11 F.3d 1482, 1487 (9th Cir. 1993).
In engaging in this analysis, no one factor is dispositive. Id. at 1488. With respect to the first factor, Trustee has shown that Woods had intentional and continuous contact with California. Woods was listed as an "Independent Contractor" on the Life Settlement Agreement’s coverage page. (John E. Tackett Decl. ¶15). Woods was associated with Conestoga, which was selling securities in the State of California.
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As to the second factor, there is nothing in the record or that the
Court can see that indicating that it would be inconvenient for Woods to litigate this lawsuit in California.
Looking at the third factor, Trustee claims arise under federal law and California Law. Thus, there is no potential conflict with another state’s law or regulation. Thus, this weighs in favor of the Trustee.
Trustee is headquartered in California, and Debtors are residence of California. Californian courts, including this Court, have a strong interest in protecting California citizens and domestic businesses from the wrongful acts of a non-resident defendant.
As to the fifth factor, most of the evidence and witnesses are based in Riverside, California. Converse met with Debtors multiple times at a Panera Bread in Riverside, where the contract was signed.
Turning to the sixth factor, while it may not be as convenient for the Trustee to litigate this matter outside of California, there is nothing in the record suggesting that convenient and effective relief is unavailable in a different forum. Thus, this factor is neutral.
Evaluating the seventh factor, the Court finds that this factor is neutral for the same reasons stated above. Thus, taking all the foregoing factors into consideration, the Court finds that personal jurisdiction over Woods in this action is appropriate.
To obtain a default judgment, a two-step process is required: "(1) entry of party’s default (normally by the clerk), and (2) entry of a default judgment[, which can be given by the Clerk if the sum is certain or by the Court in all other cases]". In re McGee, 359 B.R. 765 (B.A.P. 9th Cir. 2006). The Trustee has admitted that the sum in this claim is certain, so such an entry of default by the Clerk could be appropriate. However, this motion has provided additional support for the calculation of damages.
The complaint includes fraud, negligent misrepresentation, violation of securities
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qualification requirements, and misrepresentation in the sale of securities. The Trustee asks to be awarded interest and punitive damages as well as the full invested amount,
$250,000. Before the Court can address the Trustee claims, it must determine if the pleadings support a finding of a principal-agent relationship between Woods and Converse since all the claims against Woods are based on the allegation that Converse is the agent of Woods
Agent
A principal-agent relationship can be created by one of two ways:
actual authority—"an agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonable believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act—or
apparent authority—"the power held by an agent…to affect a principal’s legal relationship with third parties when a third party reasonably believes the actor has authority to act on behalf and that belief is traceable to the principal’s manifestation. Restatement (Third) of Agency §§ 2.01 and 2.03.
Because there is no declaration provided by Converse, the pleading does not provide support for actual authority. Nor does the complaint allege sufficient facts to establish an agency relationship.
However, there may be evidence of apparent authority. "Apparent authority ‘must be established by proof of something said or done by the principal on which [a third part] reasonably relied’; it ‘cannot be established merely by showing that [the purported agent] claimed authority or purported to exercise it.’" Pascal v. Agentra, LLC, 2019 U.S. Dist. Lexis 179359, *10 (Cal. Dist. Ct. App. 2019) (quoting Nat’l Labor Relations Bd. v. Dist.
Counsel of Iron Works, 124 F.3d 1094, 1099 (9th Cir. 1997).
Examples of an establishment of apparent authority would be the "principal’s direct statement to the third party, directions to the agent to tell something to the third person, or the granting of permission to the agent to perform acts and conduct negotiations under circumstances which create in him a reputation of authority in the area which the agent acts and negotiates." Id. No evidence of this kind was presented in the pleading. Thus, the Trustee does not plead sufficient facts to support an apparent authority that Woods is vicariously liable for the acts purportedly perpetrated
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by Converse.
Furthermore, evidence of ratification is also not present in the pleading.
Ratification is "the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority. Kristensen v. Credit Payment Serv., 879 F.3d 1010, 1014 (9th Cir. 2018). A principal can be found liable when he or she ratifies an originally unauthorized tort. Id.
However, here the Debtors’ declaration simply reflects that Woods’ name appears on the cover page of the Life Settlement Agreement under "Independent Contractor Name." Nothing in the claim establishes such proof of a principal-agent relationship nor ratification of the agents authorized conduct.
Thus, the Court is inclined to DENY the motion for default judgment.
APPEARANCES REQUIRED.
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
2:00 PM
Michael Woods Pro Se
Michael McDermott Pro Se
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
Movant(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Rafael R Garcia-Salgado
Plaintiff(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Rafael R Garcia-Salgado
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
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, 11/14/18, 1/30/19, 2/27/19, 6/12/19, 7/10/19
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
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Louis J Esbin
Rafat 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, 8/22/18, 10/31/18, 2/27/19, 6/12/19
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
2:00 PM
Adv#: 6:18-01061 Farah v. Bastorous et al
(A) AND FOR FRAUD, DECEIT AND/OR FALSE PROMISE by Wayne W Suojanen on behalf of Mina Farah against Mark Bastorous. (RE: related document(s)1 Adversary case 6:18-ap-01061. Complaint by Mina Farah, Mark Bastorous against Mark Bastorous, Bernadette Shenouda. false pretenses, false representation, actual fraud)),(65 (Dischargeability - other)),(14 (Recovery of money/property - other)),(13 (Recovery of money/property - 548 fraudulent transfer)),(01 (Determination of removed claim or cause)) filed by Plaintiff Mina Farah). (Suojanen, Wayne)
From: 3/27/19, 6/12/19 EH
Docket 45
- 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
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Thomas F Nowland
Plaintiff(s):
Mina Farah Pro Se
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) AND FOR FRAUD, DECEIT AND/OR FALSE PROMISE by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (RE: related document(s)1 Adversary case 6:18-ap-01062. Complaint by Anis Khalil against Mark Bastorous, Bernadette Shenouda. false pretenses, false representation, actual fraud)),(65 (Dischargeability - other)),(14 (Recovery of money/property - other)),(13 (Recovery of money/property - 548 fraudulent transfer)) filed by Plaintiff Anis Khalil). (Suojanen, Wayne)
From: 3/27/19, 6/12/19 EH
Docket 43
- 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):
Anis Khalil Pro Se
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, 10/31/18, 2/27/19, 6/12/19
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#: 6:14-01070 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, 10/10/18, 2/27/19, 8/28/19, 11/6/19
Also #21 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, 10/10/18, 2/27/19, 8/28/19, 11/6/19
Also #20 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
11:00 AM
EH
Docket 235
On June 27, 2014, Fabiola Adams ("Debtor") filed a Chapter 13 voluntary petition. On August 15, 2014, Debtor’s Chapter 13 plan was confirmed. Debtor’s Chapter 13 plan was subsequently modified twice.
On October 21, 2019, Trustee filed a notice of intent to file final report, as well as a notice of final cure mortgage payment pursuant to FED. R. BANKR. P. Rule 3002.1. On November 11, 2019, HSBC Bank USA, N.A. ("Creditor") filed a response to notice of final cure, stating that Debtor remained delinquent in the amount of $33,345.36. On November 13, 2019, Trustee filed a motion for an order denying discharge, asserting that Debtor should not receive a discharge due to her failure to complete the direct payments provided for in the Chapter 13 plan.
On November 15, 2019, Debtor filed a motion for authorization to enter into a loan modification. On December 4, 2019, Debtor filed an opposition to Trustee’s motion, appearing to argue that the loan modification cured the existing default. On December 5, 2019, the Court entered an order authorizing Debtor to enter into a loan
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modification agreement.
After reviewing the attachment to docket number 239, Debtor’s motion for authority to enter into a loan modification agreement, the Court notes that it does not appear that the attached documents actually include any loan modification terms. As a result, the Court has not been presented with any evidence establishing that Debtor has, in fact, cured the delinquent direct payments to Creditor.
If Debtor provides evidence sufficient to establish that Debtor has cured the delinquent direct payments to Creditor, then the Court is inclined to DENY the motion. Otherwise, the Court is inclined to CONTINUE the matter for Debtor to file supplemental evidence.
APPEARANCES REQUIRED.
Debtor(s):
Fabiola Adame Represented By
Ramiro Flores Munoz
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 50
On May 4, 2017, Paula Rosales ("Debtor") filed a Chapter 13 voluntary petition. On July 3, 2017, Debtor’s Chapter 13 plan was confirmed. The plan was subsequently modified on September 5, 2019.
On November 5, 2019, Trustee filed a motion to dismiss for failure to make plan payments. On November 25, 2019, Trustee filed a declaration stating that the delinquency had not been cured and no opposition had been filed. On December 17, 2019, the case was dismissed.
On December 26, 2019, Debtor filed a motion to vacate dismissal simply stating that "Debtor sent in payment to be current with plan payment, but it did not post in time and the case ended out being dismissed." This being the case, it appears that the proximate cause of the dismissal on December 17, 2019 was the failure of Debtor’s attorney to promptly take action to address the situation, or to file an opposition to the motion to dismiss. The motion contains no explanation as to why Debtor did not oppose the motion to dismiss.
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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."
While Debtors’ argue that the case was dismissed due to mistakenly using a personal check to cure arrears, the Court is also concerned that Debtors’ counsel did not file an opposition to Trustee’s motion to dismiss. It is well established 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 semi-ordinary. On occasion, the requests are legally sound. Here, however, the evidence provided simply indicates that Debtor’s counsel did not take appropriate action to respond to or resolve Trustee’s motion to dismiss.
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.
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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. Williams Radcliffe to personally appear at the hearing.
Debtor(s):
Paula Rosales Represented By William Radcliffe
Movant(s):
Paula Rosales Represented By William Radcliffe William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 58
On December 30, 2017, Marian Pagano ("Debtor") filed a Chapter 13 voluntary petition. On March 23, 2018, Debtor’s Chapter 13 plan was confirmed.
On October 9, 2019, Trustee filed a motion to dismiss for failure to make plan payments. On October 23, 2019, Debtor filed an opposition to the motion to dismiss, stating that she would cure the delinquency at the hearing. At the hearing, Debtor’s attorney represented that Debtor had made a payment on October 31, 2019, but neither counsel nor Trustee had any evidence of the alleged payment. On that record, the Court dismissed the case.
On December 20, 2019, Debtor filed a motion to vacate dismissal arguing that she did in fact attempt to make a plan payment prior to the dismissal of the case, and, in support of the motion, she attaches a refund check in the amount of $1,410.19 issued to her by Trustee.
On December 26, 2019, Trustee filed comments on the motion to vacate dismissal, indicating that Trustee approves the requested relief on the condition that the Debtor
11:00 AM
cure the outstanding delinquency in the amount of $3,110.19.
Given that Debtor appears to have attempted to cure the outstanding delinquency prior to the dismissal of the case on November 7, 2019, the Court finds that vacating dismissal pursuant to FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, is appropriate in this case, conditioned on Debtor’s curing the outstanding delinquency.
APPEARANCES REQUIRED.
Debtor(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Movant(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 48
- NONE LISTED -
Debtor(s):
Judy May Wells Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 21
- NONE LISTED -
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Movant(s):
Alejandro E. Penaloza Represented By Sundee M Teeple Sundee M Teeple
Maria G. Penaloza Represented By Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Sonia Salguero Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
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):
James J. Ysais Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Franklin Rojas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Matthew D. Resnik
Joint Debtor(s):
Kenya Lashawn Britt Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nery B. Mejia Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James Hughey Jr. Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Josephine Jaques Represented By Randolph R Ramirez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kervin Rayal Routt Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah Sue Burton Represented By
Wilfred E. Briesemeister
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mary Isabelle Consalvo Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mariano Ayala Villanueva Represented By Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Davina Stowers-Burgess Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Gates Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Hugo Perez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sandraea La 'Jean Plummer Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rosemary Garcia Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
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
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jesus Antonio Palomares Pro Se
Joint Debtor(s):
Claudia Heredia Palomares Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Troy D. Lee Represented By
Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Andre B. Jackson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Florence Marie Rodriguez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gerardo Calleros Represented By Sundee M Teeple
Joint Debtor(s):
Michelle J. Calleros Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eugenio Giuseppe Mannella Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Isabel Cristina Bell Chaparro Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Wayne Stare Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lyle Faubion Represented By
Todd L Turoci
Joint Debtor(s):
Angela Faubion Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jihad Jundi Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Katrina C Lambert Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Aron Christopher Wright Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Doralene Conception Weitz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Vickie Marie Charles Represented By Jeffrey N Wishman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wesley Michael Vance Represented By Edward G Topolski
Joint Debtor(s):
Angela Lynn Vance Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Antonio Mele Represented By Chris A Mullen
Joint Debtor(s):
Victoria Isabel Mele Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Javier Bricenio Lopez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Teri Michelle Ford Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ava Maria Tumbarello Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alma Rosa Servin Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pedro Jimenez Represented By Terrence Fantauzzi
Joint Debtor(s):
Christine Jimenez Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Craig Edward Williams Represented By Julie J Villalobos
Joint Debtor(s):
Norma Geneva Williams Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 84
- NONE LISTED -
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
11:01 AM
Docket 191
- 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 127
- NONE LISTED -
Debtor(s):
Rula Nino Represented By
Devin Sawdayi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 100
- NONE LISTED -
Debtor(s):
Jesus Padilla Simental Represented By Bryn C Deb
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 99
- NONE LISTED -
Debtor(s):
Melinda Kay Allen Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 148
- NONE LISTED -
Debtor(s):
Roger C Jefferson Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Zoraida Molina Represented By Samer A Nahas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
- NONE LISTED -
Debtor(s):
Jose V Arredondo Represented By
Benjamin A Yrungaray
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Hector Miguel Ortiz Represented By
Rabin J Pournazarian
Joint Debtor(s):
Virginia Romero Ortiz Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 112
- NONE LISTED -
Debtor(s):
Lubna Shiraz Ahmed Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 63
- NONE LISTED -
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
11:01 AM
Docket 100
- NONE LISTED -
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 79
- 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 64
- 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
11:01 AM
Docket 56
- NONE LISTED -
Debtor(s):
Armando Guzman Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Bernice Hernandez Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 69
- NONE LISTED -
Debtor(s):
Rorye James Mosley Sr. Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 70
- NONE LISTED -
Debtor(s):
Michael J Soriano Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- 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
11:01 AM
Docket 55
- NONE LISTED -
Debtor(s):
Matthew J Whyte Represented By William J Howell
Joint Debtor(s):
Laura M Whyte Represented By William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Gail Nash Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Joe A Pickens II Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Genaro Flores Represented By Todd L Turoci
Joint Debtor(s):
Salome Flores Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 25
- NONE LISTED -
Debtor(s):
Guillermo Manzo Represented By Todd L Turoci
Joint Debtor(s):
Cynthia Manzo Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
Also #2 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
Trustee(s):
Karl T Anderson (TR) Pro Se
9:30 AM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
Also #1 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
10:00 AM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
From: 1/21/20 Also #2
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
10:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
Adv#: 6:18-01052 Gutierrez v. Thompson, Jr et al
From: 1/21/20 Also #1
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
11:00 AM
MOVANT: SELECT PORTFOLIO SERVICING INC
EH
Docket 66
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from § 1301(a) co-debtor stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3. DENY alternative request under ¶ 14 because it does not actually request any relief.
APPERANCES 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):
Eleazar Cordero Represented By Dana Travis
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Gilbert R Yabes
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA NA
From: 11/12/19, 12/10/19 EH
Docket 45
Service is Proper Opposition: Debtor
Parties to discuss amount of arrears. Furthermore, parties to apprise the court on adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Mario Timothy Velasquez Represented By Paul Y Lee
Joint Debtor(s):
Susan Lorraine Velasquez Represented By Paul Y Lee
11:00 AM
Movant(s):
BANK OF AMERICA, N.A. Represented By Kelsey X Luu Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 1/7/20 EH
Docket 62
Service is Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Daniel Lee Crump Represented By Nicholas M Wajda
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PARAMOUNT RESIDENTIAL MORTGAGE GROUP, INC.
EH
Docket 41
Service: Proper Opposition: Yes
The Court is inclined to GRANT relief from the 11 U.S.C. 1301(a) co-debtor stay, and approve the adequate protection stipulation filed January 27, 2020, as docket number 44.
APPERANCES 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):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Movant(s):
Paramount Residential Mortgage Represented By
Robert P Zahradka
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 60
Service is Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
The Bank of New York Mellon, et al Represented By
Anna Landa
Bonni S Mantovani Christopher Giacinto
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FLAGSTAR BANK, FSB
EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. DENY alternative request for adequate protection 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):
Rhonda Jan Kennedy Represented By Todd L Turoci
Movant(s):
Flagstar Bank, FSB Represented By Mark S Krause
Erin M McCartney
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
From: 1/14/20 EH
Docket 30
Service: Proper Opposition: Debtors
Parties to update Court as to status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Donald Ray Levier Jr. Represented By
D Justin Harelik
Joint Debtor(s):
Antoinette Marie Levier Represented By
D Justin Harelik
11:00 AM
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LOVE BUILDERS INC
Also #9 EH
Docket 48
Service is Proper Opposition: Yes
The instant motion contains an attachment to the relief requested which concisely summarizes the reason why Movant has requested relief from the automatic stay:
The Movant herein, Love Builders, Inc., seeks relief from the automatic stay in order to file an action in non-bankruptcy court to perfect and enforce its mechanic’s lien recorded on March 21, 2019 as document number 2019-0095485 and 2019-0095482. Under non- bankruptcy law, an action to perfect or enforce or foreclose a mechanic’s lien must be filed within 90 days of the filing of the claim of mechanic’s lien. In this case, there was recorded on July 24, 2019 a notice of credit and/or lien extension pursuant to California Civil Code 8460(b). The extension extended the time to perfect the mechanic’s lien.
Movant’s first argument is that the action it seeks to undertake is excepted from the automatic stay due to the operation of 11 U.S.C. § 362(b)(3). Section
11:00 AM
362(b)(3) excepts from the automatic stay "any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title."
The issue with Movant’s argument is that the excerpted paragraph above indicates that Movant desires to file an action to "perfect and enforce its mechanic’s lien." (emphasis added). To the extent Movant simply wishes to perfect (or to continue the perfection of) its mechanics lien, the automatic stay would appear to be inapplicable. Movant has, however, also requested authority to enforce its mechanics lien, and the automatic stay does apply to such request.
In support of its request for relief from the automatic stay, Movant points out that this Court has already granted relief from the automatic stay pursuant to § 362(d)(2) to the senior lienholder with regard to each of the subject real property parcels. While the senior lienholder has filed an opposition, which argues that Movant has failed to demonstrate the absence of equity or adequate protection, Movant’s reference to this Court’s orders entered December 17, 2019, is sufficient under the law of the case doctrine. See, e.g., Arizona v.
California, 460 U.S. 605 (1983) (outlining law of the case doctrine).
Based on the foregoing, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. DENY request under ¶ 4. DENY request under ¶ 14, as the attachment does not appear to request any additional relief.
APPEARANCES REQUIRED.
Debtor(s):
Harris Development Represented By Kenneth D Sisco
Movant(s):
Love Builders Inc Represented By
11:00 AM
Trustee(s):
Fritz J Firman
Todd A. Frealy (TR) Represented By Robert P Goe
11:00 AM
MOVANT: LOVE BUILDERS INC
Also #8 EH
Docket 49
Service is Proper Opposition: Yes
The instant motion contains an attachment to the relief requested which concisely summarizes the reason why Movant has requested relief from the automatic stay:
The Movant herein, Love Builders, Inc., seeks relief from the automatic stay in order to file an action in non-bankruptcy court to perfect and enforce its mechanic’s lien recorded on March 21, 2019 as document number 2019-0095485 and 2019-0095482. Under non- bankruptcy law, an action to perfect or enforce or foreclose a mechanic’s lien must be filed within 90 days of the filing of the claim of mechanic’s lien. In this case, there was recorded on July 24, 2019 a notice of credit and/or lien extension pursuant to California Civil Code 8460(b). The extension extended the time to perfect the mechanic’s lien.
Movant’s first argument is that the action it seeks to undertake is excepted from the automatic stay due to the operation of 11 U.S.C. § 362(b)(3). Section
11:00 AM
362(b)(3) excepts from the automatic stay "any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title."
The issue with Movant’s argument is that the excerpted paragraph above indicates that Movant desires to file an action to "perfect and enforce its mechanic’s lien." (emphasis added). To the extent Movant simply wishes to perfect (or to continue the perfection of) its mechanics lien, the automatic stay would appear to be inapplicable. Movant has, however, also requested authority to enforce its mechanics lien, and the automatic stay does apply to such request.
In support of its request for relief from the automatic stay, Movant points out that this Court has already granted relief from the automatic stay pursuant to § 362(d)(2) to the senior lienholder with regard to each of the subject real property parcels. While the senior lienholder has filed an opposition, which argues that Movant has failed to demonstrate the absence of equity or adequate protection, Movant’s reference to this Court’s orders entered December 17, 2019, is sufficient under the law of the case doctrine. See, e.g., Arizona v.
California, 460 U.S. 605 (1983) (outlining law of the case doctrine).
Based on the foregoing, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. DENY request under ¶ 4. DENY request under ¶ 14, as the attachment does not appear to request any additional relief.
APPEARANCES REQUIRED.
Debtor(s):
Harris Development Represented By Kenneth D Sisco
Movant(s):
Love Builders Inc Represented By
11:00 AM
Trustee(s):
Fritz J Firman
Todd A. Frealy (TR) Represented By Robert P Goe
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 10
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Gregory Johnson Represented By Andrew Nguyen
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: VW CREDIT, INC
EH
Docket 18
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPERANCES 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):
Isabel Cristina Bell Chaparro Represented By Christopher Hewitt
Movant(s):
VW Credit, Inc. Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 11
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
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applicable; and
to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
(emphasis added). Here, Debtor’s statement of intention indicates that he will surrender the property. Pursuant to 11 U.S.C. § 521(a)(2)(B), the time to perform the intention indicated in the statement of intention is within thirty days of the date of the first meeting of creditors; in this case, that deadline was January 22, 2020. Therefore, either the automatic stay has terminated pursuant to § 362(h)(1)(B), due to Debtor’s failure to timely perform the action specified in the statement of intention, or the automatic stay has terminated due to § 362(c)(1), due to the subject property being surrendered and being no longer property of the estate. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Stuart Randall Jones Represented By Kristin R Lamar
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: YAMAHA MOTOR FINANCE CORP
EH
Docket 8
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶ 2.
APPERANCES 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 Lee Dickerson Represented By Nicholas M Wajda
Movant(s):
Yamaha Motor Finance Corp. Represented By Karel G Rocha
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
362(c)(4)(A)(ii) 68727 Aliso Road, Cathedral City, California 92234 . (Bach, Julian)
MOVANT: CREATIVE INVESTMENT GROUP, INC
EH
Docket 19
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous case dismissed on November 25, 2019, for failure to file case commencement documents. As a result, the automatic stay in the instant case expired on December 25, 2019.
Therefore, the Court will GRANT Movant’s request for confirmation
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that the automatic stay is not in effect. Service being proper and no opposition having been filed, the Court is inclined to GRANT Movant’s request for relief from the § 1301(a) co-debtor 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):
Rosemary Garcia Represented By Kevin Tang
Movant(s):
Creative Investment Group, Inc. Represented By Julian K Bach
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Gino Camilleri Represented By Terrence Fantauzzi
Joint Debtor(s):
Kristen Camilleri Represented By Terrence Fantauzzi
Movant(s):
SCHOOLSFIRST FEDERAL Represented By Paul V Reza
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES LLC
EH
Docket 18
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests under ¶¶ 2 and 3.
APPERANCES 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):
Earl Taylor Represented By
Stephen L Burton
Movant(s):
Carrington Mortgage Services, LLC Represented By
Diana Torres-Brito
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: EDWIN LEONEL BARCO & JUANA DE JESUS MARIN
EH
Docket 9
Service: Proper Opposition: None
The Court having reviewed the motion, service appearing proper, good cause appearing, and noting the absence of any opposition, 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):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Movant(s):
Edwin Leonel Barco Represented By
11:00 AM
Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Juana De Jesus Marin Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: RONNIE LEE MINNIFIELD
EH
Docket 14
Service: Proper Opposition: None
This motion to continue the automatic stay asserts that this case was filed in good faith because "Debtor filed his prior Chapter 13 case in pro per and lacked sufficient expertise to complete the schedules resulting in dismissal." This is incorrect. Debtor’s previous case was not filed in pro per and the case was not dismissed for failure to file information. Instead, the case was dismissed for Debtor’s failure to tender pre- confirmation plan payments. Debtor’s motion containing material inaccuracies, and having failed to address the issues causing dismissal in the previous case, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Ronnie Lee Minnifield Represented By Neil R Hedtke
Movant(s):
Ronnie Lee Minnifield Represented By Neil R Hedtke
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TRIDENT CAPITAL GROUP, LLC
EH
Docket 4
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief from § 1301(a) co-debtor stay because the motion was not served on any co-debtor. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Angelica Lomeli Pro Se
Movant(s):
Trident Capital Group LLC Represented By William E Windham
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19
Also #21 EH
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
EH
Docket 187
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18, 11/6/18, 12/18/18, 3/5/19, 3/26/19, 8/20/19, 10/29/19, 12/17/19
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19 Also #24 - #27
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19 Also #23 - #27
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19 Also #23 - #27
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19 Also #23 - #27
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19 Also #23 - #26
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
10:00 AM
From: 1/8/20 EH
Docket 19
- NONE LISTED -
Debtor(s):
William Lee Goebel Represented By Richard J Hassen
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
$281.36.
EH
Docket 40
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed for Chapter 7 voluntary petition. A short time later, Robert S. Whitmore ("Trustee") was appointed as the Chapter 7 Trustee.
Pursuant to 11 U.S.C. §704(a)(4), the Trustee believed that Debtor transferred property prior to filing her bankruptcy. In order to recovery the transferred property and to adjudicate any legal matter, the Trustee filed a motion to employ The Turoci Firm ("Trustee’s Counsel"). The application was filed in accordance with 11 U.S.C. § 327(e) and Federal Rules of Bankruptcy Procedure Rule 2014. The Application was filed on August 22, 2019, and it was granted on September 11, 2019. The Court authorized the employment of Trustee’s Counsel effective as of July 31, 2019.
The Trustee’s Counsel now applies for payment of final fees and expenses, asking the court for payment in fees in the amount of $6,348.00 and expenses in the amount of $281.36.
DISCUSSION
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Pursuant to 11 U.S.C §330, the court may award a profession person employed under 11 U.S.C. §327, which considers an attorney a "professional person." In determining the amount of reasonable compensation to be awarded to a professional person, the Court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including (1) the time spent on such services;
the rates charged for such services; (3) whether the services were necessary to the administration, (4) whether the services were performed within a reasonable amount of time, (5) whether the person is board certified or otherwise had demonstrated skill and experience in the bankruptcy field, and (6) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3).
Whether the Services Were Necessary
The Trustee employed Turoci Firm because he believed that Debtor fraudulently transferred Property located at 1527 Fairwood Way, Upland, California 91786 (the "Property"). The Trustee’s Counsel, representing the Trustee, brought an adversary proceeding against Jose Gularte and Marjorie Gularte-Torres, the individuals the Trustee believed had received the Property. The Property was last valued at $575,000, representing a twenty-fold increase to the bankruptcy estate.
Motion for Default Judgment at Ex. 5, Robert S. Whitmore v. Jose Gularte and Marjorie Gularte-Torres, No. 6:19-ap-01117-MH, ECF 11. With such a benefit to the estate, the necessity of the services rendered weigh in favor in the reasonableness of the compensation being asked for.
The Time Spent on Such Service and the Reasonableness of When the Service was Performed
Trustee’s Counsel spent a total of 21.50 hours of billable time. Dkt No. 40, Pg
8. This is reasonable, considering the investigation of Debtor’s assets, preparing and recording a notice of pendency of action, and preparing and filing of the adversary compliant and corresponding pleadings. Id. Trustee’s Counsel also filed the adversary proceeding the day after the motion was granted employing them as the Trustee’s Counsel. Thus, these two factors weigh in favor of the reasonableness of the compensation being asked for.
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The Qualification of the Firm
The Senior Associate Attorney that worked on adversary proceeding was board certified as specialist in the consumer bankruptcy law. Id. at 24. The law clerks who worked on this matter had a combined experience of nineteen years in the bankruptcy industry. This weigh in favor of the reasonableness of the compensation being asked for.
Rates Charged for Such Service
Billable Rates per professional:
Professional | Billable Hourly Rate |
Senior Associate Attorney | $350 |
Associate | $250 |
Law Clerk | $195 |
Senior Paralegal | $195 |
Paralegal | $175 |
The billable rates per the professional are reasonable compared to the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Furthermore, Trustee’s Counsel filed this application for payment in accordance with Local Bankruptcy Rule 2016-1.
Opposition: None Service: Proper
The applications for compensation of the Counsel for the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the applications of the Trustee’s Counsel, the Court is inclined to ALLOW the following administrative expenses:
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Counsel Fees: $6,348.00
Counsel Expenses: $281.36
However, the Court will not authorize payment of fees outside of a final report and accounting to ensure there are sufficient funds to pay all administrative claims pro- rate.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Movant(s):
The Turoci Firm Represented By Todd L Turoci
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 14
BACKGROUND
On September 13, 2019 ("Petition Date"), Ignacio Lenin Prado ("Debtor") filed for Chapter 7 voluntary petition. In his Schedule A/B, Debtor listed his residential home at 12932 Clovis Ct, Hesperia Ca, 92344 (the "Property") with a market value of $301,000.00. In his Schedule C, Debtor claimed an exemption of
$100,000 in said Property. Debtor then proceeded to list some creditors whom have a security interest in the Property.
On December 25, 2019, Debtor filed a motion to avoid a judicial lien with Capital One Bank USA N.A. ("Capital One") because he alleges it impairs his exemption in the Property. Notice of motion was complied with 9013-1(0), and there was no opposition filed.
DISCUSSION
Exemptions
11 U.S.C § 522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing the exemption stated in that subsection. 11 U.S.C. § 522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C § 522(d) can limit their residence to the
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exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.). California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under California Code of Civil Procedure § 703.140, including an homestead exemption of $24,060, or (2) claim the benefit of the homestead exemptions available to judgment debtors in California Code of Civil Procedure § 703.730, which provides three different amounts—$75,000, $100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In this case, Debtor elected the homestead exemption under California Code of Civil Procedure 704.730 and chose the $100,000 homestead exemption amount. The Court may not refuse to honor the exemption absent a valid statutory basis for doing so. Law v. Siegel 134 S. Ct. 1188 (2014) (stating a valid statutory basis would be for 11 U.S.C §§§ 522(c), 522(o), 522(q)). It appears that the Court has no statutory basis to refuse the exemption.
Furthermore, Pursuant to Federal Rule of Bankruptcy Procedure Rule 4003(d), a creditor has a thirty-day period to object to the motion by challenging the validity of the exemption. 4 Collier on Bankruptcy ¶ 522.05[2][b] (Richard Levin & Henry J. Sommer eds., 16 ed.). As of January 26, 2020, that thirty-day period has passed. Thus, the Debtor’s election of a $100,000-homestead exemption is valid. Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) (stating that "unless a party in interest objects, the property claimed as exempt…is exempt.")
Valuation of the Property
In 11 U.S.C. § 522(a)(2), "‘value’ is defined as ‘fair market value’ as of the date of the filing of the petition’ unless the property does not enter the estate until after the petition has been filed, in which case the value is determined ‘as of the date such property become property of the estate." 4 Collier on Bankruptcy ¶ 522.03[2] (Richard Levin & Henry J. Sommer eds., 16 ed.). See also Bfp v. Resolution Trust Corp., 511 U.S. 531, 537 (1994).
The Debtor provided a fair market valuation using the comparable-sales analysis dated in May of 2019. Dkt. No. 14, Ex 10. Courts have not come to a widely decided valuation to be used under 11 U.S.C. § 522. Furthermore, "the subsection
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makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property." In re Todd, 194
B.R. 892 (Bankr. MT. 1996) (assessing a value of a home under 11 U.S.C. § 522(a) (2)). The Court finds that a comparable-sales analysis to determine the value of a home, which would be purchased to reside in, is fitting to determine the value of the Property to evaluate if a lien could be avoided under 11 U.S.C. § 522(f).
In addition, the majority of courts have adopted the approach that the appropriate date for valuing a collateral of fixing a secured creditor’s claim is the confirmation date or a date close to confirmation. In re Dheming, 2013 Bankr. Lexis 1166 (Bankr. N.D. Cal. 2013). In this case, the comparable sales analysis was for May 2019, roughly five months before the petition date. Thus, the Court finds when the analysis was done to be appropriate. The properties used in the analysis appear to be comparable to the Property. Dkt. No. 14, Ex 10. Therefore, the Court finds that the valuation of $301,000.00 to be valid. Id.
Lien Avoidance
11. U.S.C § 522(f):
"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) of this section, if such lien is…(a) a judicial lien…"
A judicial lien is a "lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceedings." 11 U.S.C. § 101. Debtor provides evidence that a judgment was entered against him, and a lien was awarded to Capital One in the amount of $11,412.69. Dkt. No. 14, Pg. 8. The Debtor also provided the dates and amounts of when other liens encumbered the property, totaling $224,583.62. Dkt. No. 14, Ex. 1-8.
It does not matter where the judicial lien is located on the lien hierarchy of the encumbered property. Owen v. Owen, 500 U.S. 305, 311 (1991). What is paramount is "whether the [judicial lien] impairs an exemption to which [the Debtor] would have been entitled to. Id. In this particular case, it does: all liens and the exemption,
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together, total $335,996.30. Thus, the Court has determined that the judicial lien in the amount of $11,412.69 awarded to Capital One impairs the Debtor’s homestead exemption because the lien at issue plus all other liens on the property and the amount of the exemption exceed the value of Debtor’s interest in the property. 11. U.S.C.§ 522(f)(2).
Opposition: None Service: Proper
As set forth above, the judicial lien of Capital One impairs the Debtor’s homestead exemption, and the Court GRANTS this motion, avoiding this lien in its entirety.
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):
Ignacio Lenin Prado Represented By Edgar P Lombera
Movant(s):
Ignacio Lenin Prado Represented By Edgar P Lombera Edgar P Lombera Edgar P Lombera
Trustee(s):
Howard B Grobstein (TR) Pro Se
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, 12/19/18, 1/16/19, 3/13/27,
3/27/19, 5/8/19, 7/10/19, 9/18/19, 11/4/19
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
2:00 PM
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 - SUSPENDED - Michael I. Gottfried
Aleksandra Zimonjic Monica Rieder
John P. Reitman Peter M Bransten Cynthia M Cohen Roye Zur Alexander J Suarez
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 Lisa N Nobles
Peter J. Gurfein Paul Hastings
2:00 PM
Roye Zur Amy Evans
Best Best & Krieger Franklin C Adams
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, 12/19/18, 1/16/19, 3/13/19,
3/27/19, 5/8/19, 7/10/19, 9/18/19, 11/4/19
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
2:00 PM
David Loughnot 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 Alexander J Suarez
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 Lisa N Nobles
Peter J. Gurfein Paul Hastings Roye Zur
Amy Evans
Best Best & Krieger Franklin C Adams
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, 12/19/18, 1/16/19, 3/27/19,
3/27/19, 5/8/19, 7/10/19, Advanced From: 9/18/19, 9/10/19, 11/4/19 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
2:00 PM
Jonathan A Loeb 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
2:00 PM
Trustee(s):
Cynthia M Cohen Roye Zur Alexander J Suarez
Richard K Diamond (TR) Represented By Michael I. Gottfried
Richard S Berger - SUSPENDED - Rodger M. Landau
Richard K Diamond Peter M Bransten Aleksandra Zimonjic Lisa N Nobles
Peter J. Gurfein Paul Hastings Roye Zur
Amy Evans
Best Best & Krieger Franklin C Adams
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 4/17/19, 5/22/19, 8/28/19, 11/6/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19
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) Represented By Monica Y Kim
2:00 PM
MOVANT: RONNIE LEE MINNIFIELD
From: 1/28/20 EH
Docket 14
Service: Proper Opposition: None
This motion to continue the automatic stay asserts that this case was filed in good faith because "Debtor filed his prior Chapter 13 case in pro per and lacked sufficient expertise to complete the schedules resulting in dismissal." This is incorrect. Debtor’s previous case was not filed in pro per and the case was not dismissed for failure to file information. Instead, the case was dismissed for Debtor’s failure to tender pre- confirmation plan payments. Debtor’s motion containing material inaccuracies, and having failed to address the issues causing dismissal in the previous case, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Ronnie Lee Minnifield Represented By Neil R Hedtke
2:00 PM
Movant(s):
Ronnie Lee Minnifield Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01163 O'Neil et al v. Perez et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
Plaintiff(s):
Michael O'Neil Represented By
Edmond Richard McGuire
Al Karlson Represented By
2:00 PM
Edmond Richard McGuire
Dixie Karlson Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
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, 10/31/18, 7/31/19, 9/11/19, 11/20/19
EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
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
Trustee(s):
Helen R. Frazer (TR) Represented By 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, 1/31/18, 4/25/18, 2/27/18, 6/12/19
Also #12 EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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
2:00 PM
Arjun Sivakumar Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:16-01163 Revere Financial Corporation v. Burns
Also #11 EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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 Arjun Sivakumar Carmela Pagay
2:00 PM
Franklin R Fraley Jr
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19
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):
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#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19
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):
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 Revere Financial Corporation v. AMERICAN EXPRESS
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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19
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):
Revere Financial Corporation Represented By Franklin R Fraley Jr
2:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Chad V Haes
D Edward Hays Franklin R Fraley Jr
2:00 PM
Adv#: 6:19-01039 McCune v. Overmyer
EH
Docket 25
- NONE LISTED -
Debtor(s):
Stephen Lynn Overmyer Represented By Gordon L Dayton
Defendant(s):
Stephen Overmyer Represented By Gordon L Dayton
Plaintiff(s):
Lynn McCune Represented By James A Rainboldt
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19
EH
Docket 1
- NONE LISTED -
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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
Also #1.2 EH
Docket 52
- NONE LISTED -
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 John F Brady
Robby Jean Harrison Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 68
- 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
11:00 AM
Docket 65
On December 14, 2016 ("Petition Date"), Mario Mondragon ("Debtor") filed for Chapter 13 voluntary petition. On his "Schedule A/B: Property," Debtor stated he owned a vacant lot located at APN 322-060-012 Perris, CA 92570 ("Vacant Lot").
Dkt. No. 1, Pg. 11. Albert Nakama was named as the creditor whose claim was secured by the Vacant Lot.
On the same day, Debtor submitted his Chapter 13 plan:
Payments by Debtor of $150.00 per month for sixty months;
the base plan amount is $9,000.00 which is estimated to pay 7% of the allowed claims of non-priority unsecured creditors; and
post confirmation monthly mortgage payment will be made by the Debtor directly to creditor, Albert Nakama.
The plan was confirmed March 9, 2017. Dkt. No. 17. There were no significant changes to the plan other. Id.
On August 15, 2018, Debtor, through his counsel, filed a motion for the authority to refinance the Vacant Lot to pay Albert Nakama and construct a home, which Debtor planned to reside in, on the Vacant Lot. Dkt. No. 45, Declaration of Mario Mondragon. The proposed loan had these terms:
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Interest Rate | 11.00% |
Monthly Payment | $1,833.33 (interest only) |
Term | 12 Months |
Balloon Payment | $201,833.33 (Id. at Ex. C) |
The Chapter 13 Trustee ("Trustee") objected to the plan because Debtor’s rent is $750.00 per month and the payments made to Albert Nakama is $502.00 per month, totaling 1,252.00 per month. Dkt. No. 46. The new lot payment with a manufactured home would be $1,833.33, an increase of $581.33 from the total paid for Debtor’s rent and to Albert Nakama per month. Id. The Trustee questioned the feasibility of the plan if the Debtor would be allowed to refinance.
On August 31, 2018, Debtor filed an amended Schedule I and J showing Debtor could afford the Chapter 13 plan payments with the additional cost of the proposed loan’s monthly payments. Dkt. No. 49. On September 19, 2018, the Trustee gave his approval. The motion was granted on October 2, 2018. The Debtor subsequently built his new residence at 21270 Salter Road, Perris, CA 92570 (the "Property").
As the balloon payment comes ever closer to being due, Debtor has filed another motion for authority to refinance the Property. Dkt. No. 65.
11 U.S.C. § 1327:
"(a) 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…(b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor."
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Based on the Debtor’s plan, "the property of the estate shall not re-vest in the Debtor until such time as a discharge is granted or the case is dismissed or closed without discharge." Dkt. No.2 Pg. 8. Furthermore, pursuant to Local Bankruptcy Rule ("LBR"), a motion to refinance property in a Chapter 13 case must be filed under LBR 3015-1(p), which must be approved by the Court. LBR 6004-1.
Debtor’s proposed loan has these terms:
Loan Amount | $210,622.00 |
Interest Rate | 4.5% |
Monthly Principal and Interest | $1,067.19 |
Term | 30 years |
On January 6, 2020, The Trustee stated some concerns that were not applicable in this motion and then filed an amended trustee’s comments giving his approval.
The Debtor, amending his Schedule I and J, good cause appearing, will have enough discretionary income to pay the proposed loan monthly payments and his Chapter 13 plan payments of $150.00 per month. The Court GRANTS the motion to authorize refinancing of the Property.
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):
Mario Mondragon Represented By Michael Smith
11:00 AM
Movant(s):
Sundee M Teeple
Mario Mondragon Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19
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
EH
Docket 48
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/19/19, 10/17/19, 12/5/19, 12/19/19
Also #4 - #6 EH
Docket 51
Among other things, Debtor argues that the subject 2011 assessment lien was satisfied in Debtor’s prior chapter 13 case, case no. 11-48313, and in fact the Debtor’s claim in that case, the plan and confirmation order, and the trustee’s final report and accounting all indicate that the secured debt reflected in Debtor’s claim in that case was fully paid. That, however, does not appear to resolve the issue, because if the HOA’s lien is in fact a continuing lien, then the debt secured by that lien presumably continued to grow based on post-confirmation defaults in Debtor’s HOA assessment obligations. In other words, assuming the 2011 lien is a continuing lien, at the same time Debtor’s plan payments to trustee in the prior case reduced the debt secured by the 2011 lien, Debtor’s post confirmation defaults increased the debt secured by the 2011 lien, and it would not have been fully satisfied in the prior case. As to whether the lien was a continuing lien, the relevant statutes, as well as the applicable caselaw, are less than clear.
In Bear Creek, 130 Cal. App. 4th 1470 (2005), based on very clear language in the applicable CCRs that any lien on account of prior delinquencies "shall be deemed to include subsequent delinquencies and amounts due on account of …", the Court found the continuing lien in that case did not violate Davis-Stirling. While it lacks reference to Diamond v. Superior Court, discussed below, this Court believes reference to Diamond is misplaced and not dispositive on this issue, and Bear Creek presents a meaningful and straightforward statutory analysis as to why Davis Stirling does not prohibit continuing liens per se, as well as a very compelling policy rationale for its
11:00 AM
conclusion.
In Guajardo, 2016 WL 943613 (Bankr. N.D. Cal.), the bankruptcy court found that the notice of delinquent assessment was ineffective under both California contract law and the Davis-Stirling Act. As to California contract law, the court stated that with respect to notices of delinquent assessment, the CCRs in that case permitted the HOA to give notice of default "within ninety days after the occurrence of a default," and states that "[e]ach lienable default shall constitute a separate basis for a lien." (emphasis from Guajardo). Guajardo finds this language clear and unambiguous and as somehow prohibiting a continuing lien. 2016 WL 943613 at *3. This Court disagrees. There is no meaningful analysis on that point in Guajardo, and this Court simply interprets that language as protecting the enforceability of a lien if one of several underlying defaults is cured or otherwise invalid. At the least the language is not unambiguous and is subject to reasonable alternative interpretations. Shifting then to its alternative grounds, that Davis-Sterling prohibits a continuing lien (presumably regardless of the language in any CCRs or notice of delinquent assessment), the Guajardo court summarily states that the language of the notice adding "future amounts" to the lien is inconsistent with the portion of the Davis Sterling act that requires the unpaid amounts to be specifically set forth in the notice and attached accounting. However, the Guajardo analysis then attempts to support this argument by referring back to Bear Creek and attempting to draw a distinction with the CCR language in that case. In other words, Guajardo does not offer any support for the proposition that Davis-Stirling does not allow a continuing lien other than by comparing relevant CCR language (i.e., it supports the Davis-Sterling argument only by the California contract law argument). The clearest takeaway finding from Guajardo is that where CCRs are not specific that a lien shall be deemed to include subsequent delinquencies (distinguished from the facts in Bear Creek), any such lien is prohibited from securing such subsequent delinquencies under California contract law. See Guajardo at *3. This Court finds unpersuasive Guajardo’s alternative conclusion that Davis-Sterling per se prohibits an assessment lien from including subsequent delinquent amounts.
In In re Warren, 2016 WL 1460844 (D.N.D. Cal.), without meaningful analysis the court cited Guajardo for the proposition that prospective assessment language is inconsistent with Davis-Stirling, and cited Diamond v. Superior Court, 217 Cal.App.4th 1172, 1191 (2013), for the proposition that Davis-Stirling procedural
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notice requirements must be "strictly construed" such that "substantial compliance is insufficient." However, the citation to Guajardo merely incorporates the analytical weakness of Guajardo noted above, and Diamond does not pertain to the issue of continuing liens. Notably, Warren cites to In re Henderson, 155 B.R. 10 (Bankr. S.D. Cal. 1993) for the proposition that future unpaid dues cannot be secured by an earlier assessment lien in California. However, the cite to Henderson is unpersuasive – the Henderson decision regards the issue of priority between an assessment lien and a tax lien, and the statement in Henderson that "once [unpaid dues] became due, Seabreeze should have filed liens for those certain amounts to perfect its interest" does not contain any analysis or statutory or caselaw support.
In In re Guillen, 604 B.R. 826 (9th Cir. BAP 2019), the BAP found that (1) the CCRs in question did not authorize a continuing lien and (2) the Davis-Sterling Act does not authorize a continuing lien because it is inconsistent with the Act’s notice provisions and the expressed legislative purpose of the Act. The difficulty with unraveling the Guillen decision is that it convolutes its two alternative findings and is otherwise based on the flawed Guajardo and Warren decisions. Specifically, Guillen found that the CCRs in its case did not contain language similar to that in the Bear Creek case, which allowed a lien to include subsequent assessed amounts, and as such Guillen did not have to follow Bear Creek. But Guillen went on to opine that Bear Creek was flawed because it failed to consider the purpose of the Davis Stirling Act was to protect homeowners and the requirements of Davis-Stirling Act were to be strictly construed. This aspect of the Guillen decision is not persuasive. Certainly Davis- Stirling does include certain requirements in an assessment notice to protect homeowners, but Davis-Stirling is clear such a notice may include undetermined amounts such as costs and fees, and as analyzed by Bear Creek the statute can be interpreted to include subsequent assessments. On this point Guillen is merely offering a superficial analysis unsupported by any meaningful direct authority and is otherwise perched on the fragile house of cards of Warren and Guajardo. The Bear Creek analysis based on statutory interpretation that Davis-Stirling does not per se prohibit a continuing lien is more persuasive to this Court.
The problems with this analysis are compounded by the fact that the HOA did not present it’s further briefing by the January 10, 2020, deadline, which it indicated it wished to file. Further, the Court notes that the relevant CC&R contains the following possibly relevant language that was not cited by HOA:
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"All Assessments other than Special Assessments, together with interest, costs, and reasonable attorneys’ fees for the collection thereof, shall be a charge on the land and shall be a continuing lien upon the Lot or Condominium against which such assessment is made."
CC&R, Section 6.01 (emphasis added). Without analysis by the parties the Court is reluctant to interpret this language.
Ultimately, the questions herein likely require certification to the California supreme court. Absent that, given the scant caselaw and problems therewith, this Court declines to find that Davis-Stirling per se prohibits an assessment lien from including subsequent assessments. Nonetheless, based on the contract law analysis presented in the applicable caselaw, the Court finds the subject CCRs do not contain sufficiently specific language providing that any lien shall also include subsequent assessments, rising to the level of that in Bear Creek, to support a continuing lien, and thus that HOA has failed to meet its ultimate burden as to the issue of a continuing lien. On that basis, finding the lien in question is not a continuing lien, the Court is inclined to find the underlying HOA’s claim in the prior case, which was the only debt secured by the 2011 lien, was fully satisfied in the Debtor’s prior bankruptcy case, and to disallow the claim in this case to the extent it purports to be a secured claim.
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Movant(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/19/19, 10/17/19, 12/5/19, 12/19/19
Also #4 - #5 EH
Docket 53
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Movant(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 9
On December 3, 2019 ("Petition Date"), Doralene Conception Weitz ("Debtor") filed for Chapter 13 voluntary petition. Prior to filing this petition, Debtor had filed two previous Chapter 13 voluntary petitions within a year, making this petition the third Chapter 13 filing in a year.
On August 8, 2019, Debtor filed for Chapter 13 voluntary petition, case number 6:19-bk-17554-MH ("First Case"). In her First Case, Debtor did not file any schedules, a Means Calculation, Statement of Financial Affairs, Chapter 13 Income, nor a Chapter 13 plan. Debtor filed a motion to extend the deadline to file the required information. In her motion, Debtor stated that the Chapter 13 process is very extensive and complicated, and she is in the process of hiring a bankruptcy Attorney to assist her.
The motion was granted. However, Debtor neither hired a bankruptcy attorney to represent her nor filed any additional documents. Debtor’s First Case was dismissed and later closed on November 11, 2019.
Before the closure of the First Case, on October 29, 2019, Debtor filed another Chapter 13 voluntary petition, case number 6:19-bk-19517-MH ("Second Case"). In her Second Case, Debtor stated immediate attention is needed because property located at 6872 Blanchard Avenue, Fontana CA, 92335 (the "Property") had been foreclosed on and an auction sale date was to occur on October 30, 2019.
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Regardless of this new piece of information, Debtor’s Second Case had the
same result as the First Case—dismissed due to failure to file required documents. However, Unlike the First Case, Debtor’s Second Case had no motion to extend the deadline to file the required documents.
Because of the skeletal filings of the previous and current Chapter 13 petitions and the foreclosure and pending auction of the Property, Abram Feuerstein, United States Trustee ("U.S. Trustee"), believes the Debtor has been filing her Chapter 13 petitions in bad faith and asks the court to dismiss her case with a re-filing bar of one year.
Bad Faith
11 U.S.C § 1307(C):
"…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…or dismiss a case under this chapter…for cause, including…"
Subsection 1307(c) then proceeds to list eleven circumstances that would constitute cause. However, ‘bad faith’ is not listed. Nonetheless, bankruptcy courts "routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause.’" In re Goodvin, 548 B.R. 806, 811 (Bankr. N.D. IA. 2016) (quoting Marrama v. Citizens Bank, 549 U.S. 365, 372 (2007).
Bad faith is determined by the totality of the circumstances test. In re Craighead, 377 B.R. 648, 654 (Bankr. N.D. Cal. 2007). Bankruptcy courts should consider the following circumstances in determining a cause for dismissal under Chapter 13 petition with prejudice for bad faith: (1) whether the debtor misrepresented facts in her petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed her Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filing and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219,
11:00 AM
1224 (9th Cir. Ct. App. 1999).
United States Trustee believes that Debtor filed multiple cases and failed to file the required documents, so she could thwart the effort of a creditor. Dkt. No. 9 Pg.
6. Because Debtor filed skeleton petitions, it is neither likely nor unlikely that Debtor would have been able to stay the foreclosure of this Property. Thus, the United States Trustee’s conclusion based on Debtor’s action seems farfetched.
Based on the facts of this case, a more likely conclusion is that Debtor was overwhelmed with the bankruptcy process and failed to hire counsel as she stated she would in her motion to extend the deadline for filing in her First Case. Nonetheless, the result is still the same. Debtor unfairly manipulated the bankruptcy code. With ever refiling of her petition, Debtor prevented the creditor that enacted foreclosure proceedings against the Property any recourse. Before any notice could be sent to the creditor, the Debtor’s petition was closed and another one had been filed. This left the creditor in a perpetual state of inaction. In re Craighead, 377 B.R. 648 (Bankr. N.D. Cal. 2007) (finding that a family engaged in bad faith because they had filed numerous skeletal petitions to prevent a foreclosure of real property.)
For the Court to find a lack of good faith neither malice nor actual fraud is required to be present. In re Leavitt at 1225. Malfeasance is not a prerequisite to bad faith. Id. The Court finds that the Debtor is abusing the bankruptcy system. Therefore, "cause" exists for the case to be dismissed under 11 U.S.C. § 1307(c).
After the issue of bad faith is raised, Debtor has the burden to prove her good faith. Leavitt v. Soto, 209 B.R. 935 (B.A.P 9th Cir. 1997). Debtor failed to file a response to U.S. Trustee’s allegation. Thus, Debtor has not met her burden.
Sanction
11 U.S.C § 349(a) authorizes the Court to dismiss the case with prejudice. Id. at 1224. This motion requests a one-year bar. The Court agrees with the U.S. Trustee that a one-year bar to re-filing is appropriate in this case. In re Leavitt, 171 F.3d at 1226 ("stating that the issue of the length of the bar is a matter for the Court’s discretion.")
11:00 AM
Thus, the Court finds that cause, which is bad faith, exist, and GRANTS this motion to dismiss Debtor’s case with a re-filing bar of one year.
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):
Doralene Conception Weitz Pro Se
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
HOLDING DATE
From: 11/7/19, 12/19/19 Also #9
EH
Docket 18
- NONE LISTED -
Debtor(s):
Frank E Sharaby Represented By Paul Y Lee
Movant(s):
Frank E Sharaby Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8 EH
Docket 0
- NONE LISTED -
Debtor(s):
Frank E Sharaby Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 47
On May 16, 2019 ("Petition Date"), Hakim M. Iscandari ("Debtor") and Christine E. Allen ("Joint Debtor") (collectively, "Debtors") filed for Chapter 13 voluntary petition. On December 26, 2019, HSBC Bank USA, National Association ("HSBC") filed a claim arising from a loan ("Claim 21-1"). Claim 21-1 is secured by a deed of trust, totaling $126,479.21. On December 19, 2019, the Debtors, through their counsel, filed this motion, asking for the lien securing Claim 21-1 be avoided pursuant to 11 U.S.C. § 506(d).
11 U.S.C. § 506(d):
"To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless—(1)such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title."
Claim
To determine whether Claim 21-1 is void, the Court must determine whether the claim is allowed or disallowed pursuant to 11 U.S.C. § 502. Dewsnup v. Timm,
11:00 AM
502 U.S. 410, 417 (1992).
11 U.S.C. § 501 states that a creditor may file a proof a claim when some purpose would be served, such as, but not limited to, sharing in the distribution, contesting a claim, and notifying others of any claim. In re Chateaugay Corp., 94 F.3d 772, 777 (2d Cir. 1996). If the creditor files a proof of claim pursuant to Fed. Rule of Bankr. Procedure ("FRBP") 3001, such filing shall constitute as prima facie evidence of the validity and the amount of the claim. However, if the creditor fails to file a claim pursuant to this rule, the claim is not automatically disallowed. FBRP 3001(c) (2)(D)(i)-(ii).
HSBC’s filing of Claim 21-1 followed the procedures listed in FRBP 3001(c) (2): (1) a copy of the claim based on writing was provided; (2) an itemized statement of the interest, fees, expenses, or charges was filed with the claim; (3) a statement of the amount necessary to cure any default was provided; (4) and a mortgage proof of claim attachment was filed with the proof of claim. Thus, the filing constitutes as prima facie evidence of the validity and the amount of the claim, $126,479.21.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. A chapter 13 debtor is considered a party in interest under 11
U.S.C. § 502(a) to object to claims. Vol 4 Collier on Bankruptcy ¶ 502.02[2][d] (Richard Levin & Henry J. Sommer eds., 16th ed.). If a party in interest fails to object, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000).
To negate the prima facie evidence of the validity of the claim, the party in interest who objects must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency. E.g. In re A Trucking Crane Rental & Repair Co., 2008 Dist. Lexis 4864 (S. D. Cal. 2008) (stating that trustee rebutted the prima facie validity of the proof of claim by contending the creditor failed to properly authenticate the sublease document). See also, In re Preisendanz, 2017 Bankr. Lexis 3860 (Bankr. C. D. Cal. 2017) (showing that debtor rebutted the prima facia validity of the proof of claim by alleging the claim was barred pursuant to a statute of limitations of four years).
11:00 AM
Secured Claim
Lien
A claim cannot be a secured claim unless it is secured by a lien. Vol 4 Collier on Bankruptcy ¶ 506.03 (Richard Levin & Henry J. Sommer eds., 16th ed.). A deed of trust is a lien. First Nat’l v. Silva, 200 Cal.494 (Cal. 1927) In this case, HSBC has provided evidence of a deed of trust in the amount of $126,479.21. HSBC’s Proof of Claim 21-1.
Valuation of the Collateral
Pursuant to 11 U.S.C. § 506(a)(1), an allowed claim is a secured claim to the extent of the value of such creditor’s interest in such property and an unsecured claim to the extent that the value of such creditor’s interest is less than the amount of such allowed claim. Thus, to proceed with the analysis to figure out to what extent, if any, of Claim 21-1 is secured, the Court must determine the value of the property.
In this case, the deed of trust attached to Debtors’ primary residence located at 41015 Crimson Pillar Lane, lake Elsinore, California 92532 (the "Property"). The value of the property is determined in light of the purpose of the valuation and of the proposed disposition or use of such property. 11 U.S.C. § 506(a). In Debtors’ Chapter 13 plan, Debtors stated they will maintain and make the current contractual installment payments on claims secured solely by property that is debtors’ principal residence. Dkt No. 2, Pg 5-6. With this purpose in mind, courts have used the comparable sales method determined at or near the petition date. In re Tremblay, 2012 Bankr. Lexis 3435 (Bankr. S.D. Cal. 2012) (using a comparable sale method to value a property a Chapter 13 Debtor planned to reside in.); see also In re Dheming, 2013 Bankr. Lexis 1166 (Bankr. N.D. Cal. 2013).
Debtors’ provided a value, $390,000.00, of the Property determined by the sales comparison approach as of the date of November 16, 2019. Dkt 47, Ex. 10. The Court finds that the method used to value the Property is valid for a residential purpose, and the date chosen for the valuation, a month after the Petition Date, to be near the Petition Date. Thus, the Court finds the value of the Property is set at
$390,000.00.
11:00 AM
Interest in the Property
After the collateral is valued, the next step in the analysis is to determine the
estate’s interest in the Property and then the creditor’s interest in the Property. A deed of trust dated July 14, 2006, was provided, listing the Debtors as borrowers whom have "the right to grant and convey the Property." Dkt. No. 47, Ex. 7. Furthermore, the full ownership interest is given to the Debtors. Id.
Property of the estate includes all legal or equitable interest of the debtor in property as of the commencement date. See 11 U.S.C. § 1306; see also 11 U.S.C. §
541. The Court finds that full ownership of the property lies in the estate.
Having determined the estate’s interest, the Court will proceed to determine HSBC’s interest in the property. There are other liens that encumbered the property. In general, the amount of debt secured by senior liens must be deducted in determined the extent to which a junior creditor holds interest. Thus, the court must determine where HSBC’s lien is placed in priority relatively to the other liens.
"Other things being equal, different liens upon the same property have priority according to the time of their creation…" Cal. Civ. Code § 2897. In this case, a deed of trust was recorded on July 7, 2006 and was subsequently assigned to Deutsche Bank National Trust ("Deutsche Bank") on October 6, 2010. Dkt. No 47. Ex. 7. HSBC recorded its deed of trust on September 10, 2015. Dkt. No. 47 Ex. 9. The other liens were created after HSBC’s deed of trust. Thus, HSBC’s deed of trust is only junior to Deutsche Bank’s deed of trust:
Priority | Creditor | Amount of Claim |
1st Lien | Deutsche Bank National Trust | $513,002.21 (Claim 19-1) |
2nd Lien | HSBC USA, N.A. | $126,479.21 (Claim 21-1) |
11:00 AM
3rd Lien | Rosetta Canyon | $36,482.93 (Claim 1-1, judicial lien Portions only) |
Because the determined value of the Property is set at $390,000.00, Claim 21-1 is an unsecured claim.
No Exceptions
Pursuant to 11 U.S.C. § 506(d), the lien is void unless it falls under the exceptions: certain unmatured obligations for alimony, maintenance, or child support (11 U.S.C. § 502(b)(5)); or reimbursement or contribution claim to the extent that claim is contingent or the co-debtor asserting the claim elects a subrogation remedy (11 U.S.C § 502(e)). The subject lien does not fall under either exception.
Because Debtors are filing a petition under Chapter 13 and the Property is the primary residence of Debtors, 11 U.S.C § 1322(b)(2) applies, which prohibits the modification of the rights of holders of a claim secured only by a security interest in real property that is the debtor’s principal place of residence.
However, there is an exception to this exception. In re Zimmer, 313 F.3d 1220 (9th Cir. 2002). A Chapter 13 plan can modify the rights of a junior lienholder on a principal residence if the lien is entirely underwater. Id. In this case, HSBC’s lien is total underwater. Therefore, no exceptions apply, and the lien is void.
Thus, the Court GRANTS the request to avoid the lien of HSBC in its entirety pursuant to 11 U.S.C. § 506(d).
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):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 - #13
EH
Docket 0
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
James J. Ysais Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Aron Christopher Wright Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Randolph Thomas Lascurain Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tricina LaVerne Edwards Represented By Nathan Fransen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James William Seifert Represented By Alon Darvish
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria J Aguilar Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Edward Urick III Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Francisco R Palacios Represented By
David A Akintimoye
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jay Tony Klester Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Anthony Meisland Represented By Marc A Duxbury
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Roberto Nieves Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Augusto Mora Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Stephanie Brown Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Josephina Lopez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Larry D Sanders Represented By Paul Y Lee
Joint Debtor(s):
Veronica D Sanders Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria T. Acosta Represented By Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jori Lynn Smith Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Chuckie Harold Elmore Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ana Cecilia Gonzalez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gary Ellison Represented By
Todd L Turoci
Joint Debtor(s):
Rachelle Malbrough Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brandi Lee Ramos Represented By Dana Travis
Joint Debtor(s):
Alejandro Ramos Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anthony Michael Santana Represented By Ruben Fuentes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marlon Mayfield Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sarah Suzanne Kelso Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Chris Dennis Represented By
Christopher Hewitt
Joint Debtor(s):
Ami Dennis Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Katina Deneen Edwards Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cristian Enrique Dominguez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeremiah Schermerhorn Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Rogelio Marquez Represented By Curtis R Aijala
Joint Debtor(s):
Rosa M. Perea de Marquez Represented By Curtis R Aijala
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Eric Kissell Represented By
William J Howell
Movant(s):
UNITED STATES OF AMERICA Represented By
Najah J Shariff
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 157
- 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
Docket 127
- 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 262
- 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
EH
Docket 148
- NONE LISTED -
Debtor(s):
Roger C Jefferson Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 80
- 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 33
- NONE LISTED -
Debtor(s):
Hector Miguel Ortiz Represented By
Rabin J Pournazarian
Joint Debtor(s):
Virginia Romero Ortiz Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 100
- NONE LISTED -
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 117
- NONE LISTED -
Debtor(s):
Ann Marie Smith Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 75
- 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
EH
Docket 53
- NONE LISTED -
Debtor(s):
Rushelyn Napalan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 80
- NONE LISTED -
Debtor(s):
Percylyn Agustin Basa Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
- NONE LISTED -
Debtor(s):
Victor Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Everett T Cain Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 52
- 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
11:01 AM
Docket 92
- NONE LISTED -
Debtor(s):
Joseph N Duguay II Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Dawn Michele McClure Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
- NONE LISTED -
Debtor(s):
Matthew J Whyte Represented By William J Howell
Joint Debtor(s):
Laura M Whyte Represented By William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Abelardo Magana Represented By Rebecca Tomilowitz
Joint Debtor(s):
Santos Magana Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Veronica Montes Represented By Nathan Fransen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Daniel Lee Crump Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 65
- 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
11:01 AM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- NONE LISTED -
Debtor(s):
Heather Ann Pessoa Bond Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 63
- NONE LISTED -
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Anthony P Mendoza Represented By Paul Y Lee
Joint Debtor(s):
Lena E Mendoza Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
- NONE LISTED -
Debtor(s):
Angel Victoriano Represented By Edward T Weber
Joint Debtor(s):
Maura Guzman Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 152
- 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
11:01 AM
Docket 98
- NONE LISTED -
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
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Jamie Marie Saucedo Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Ann Marie Pearson Represented By Barry E Borowitz
Trustee(s):
Steven M Speier (TR) Pro Se
1:00 PM
CASE DISMISSED 3/14/19
From: 8/22/19, 9/19/19, 11/21/19 EH
Docket 48
- NONE LISTED -
Debtor(s):
Alfredo N Adriano Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC DBA MR COOPER
EH
Docket 54
- NONE LISTED -
Debtor(s):
Richard LaFayatte Sellers Represented By Marjorie M Johnson
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Gilbert R Yabes Dane W Exnowski Kelsey X Luu
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 1/7/20 EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Riverside, California 92509
MOVANT: THE BANK OF NEW YORK MELLON
From: 1/28/20 EH
Docket 60
Service is Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
The Bank of New York Mellon, et al Represented By
Anna Landa
11:00 AM
Trustee(s):
Bonni S Mantovani Christopher Giacinto
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: 2ND CHANCE MORTGAGES INC.
EH
Docket 38
Service: Proper Opposition: None
Debtors filed their Chapter 13 plan, and it was later confirmed on June 12, 2019. Neither Debtor’s commencement documents nor Chapter 13 plan list the property. Movant, 2nd Chance Mortgages Inc. (hereinafter "2nd Chance") received a deed of trust on April 15, 2010 in return for lending $130,000 to the Debtor to purchase said property.
2nd Chance admits that Debtor may not own the property because lots 22 and 23 were sold at a tax deed sale to Cruz Torres, recorded on June 26, 2018, and lot 24 was conveyed by quitclaim deed to Victor P. Williams, recorded on November 6, 2013.
Dkt. No. 40, Pg. 3. However, 2nd Chance wants a relief from the stay to proceed with a foreclosure because Debtor is obligated on the underlying note and deed of trust: 2nd Chance’s foreclosure trustee requires an order formally granting relief from the stay.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the note, the deed of trust, and the post-petition history, pursuant to U.S.C. § 362(d)(1), 2nd
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Chance has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor has not opposed the motion. Thus, he has not met his burden.
As the Movant has conceded the Property is not property of the estate, it is unclear if there is a stay in place. However, the lack of such a response from Debtor, pursuant to Local Bankruptcy Rule 9013-h, may be deemed to be consent to the granting or denial of the motion, and given the circumstances a comfort order appears warranted. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Jerome D Williams Represented By Christopher J Langley
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: A-L FINANCIAL CORP
CASE DISMISSED 1/30/20
EH
Docket 19
Service: Proper Opposition: Debtor
By providing the retail installment sale contract, the certificate of title, Kelly Blue Book Value of the property, and the current value of the claim, pursuant to U.S.C. § 362(d)(1), the movant, A-L Financial Corp. has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor responded to this motion. He claims that his Chapter 13 plan, which list this A-L Corp. as a secured creditor, fully provides adequate protection to the Movant. Furthermore, Debtor alleges that the vehicle is insured, and all post-petition plan
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payments will be cured by the hearing date.
Parties are to update the Court as to the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Movant(s):
A-L Financial Corp. Represented By Lincoln D Gardner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 10
Service: Proper Opposition: None
By providing the retail installment sale contract, electronic title, current value of the claim, and the value of the property based on NADA Guides Value Report, pursuant to U.S.C. §§ 362(d)(1) and 362(d)(2), the movant, BMW Bank of North America has established that its interest is not adequately protected nor does the Debtor have any equity in the property. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor has not opposed this motion, and Debtor has stated an intent to surrender the property pursuant to 11
U.S.C. § 521(a)(2). Dkt. No. 1, Statement of Intention.
In such a case, the stay is not terminated when the Debtor intends to surrender the property. In re Stephens, 2013 Bankr. Lexis 1202, *28 (Bankr. N.D. NY. 2013).
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Instead, such action, surrendering the property, means relinquishing the debtor’s rights and taking no action to resist any efforts by the creditor to gain possession. Id. 11
U.S.C. § 521(a)(2)(B) requires that the Debtor within thirty days after the first date set for the meeting of creditors perform his intention. The meeting of the creditors was first set on December 27, 2019. Thirty-nine days have passed, and the Debtors have not performed their intention.
Thus, pursuant to § 362(h)(1)(B), the automatic stay is terminated. In the alternative, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Ozzie Shabazz Aleem Represented By Alexander Pham
Movant(s):
BMW Bank of North America Represented By Cheryl A Skigin
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 16
Service: Proper Opposition: None
By providing the retail installment sale contract, electronic title, current value of the claim, and the value of the property based on NADA Guides Value Report, pursuant to U.S.C. §§ 362(d)(1) and 362(d)(2), the movant, BMW Bank of North America has established that its interest is not adequately protected nor does the Debtor have any equity in the property. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor has not opposed this motion, and Debtor has stated intention to surrender the property pursuant to 11
U.S.C. § 521(a)(2). Dkt. No. 1, Statement of Intention.
In such a case, the stay is not terminated when the Debtors intend to surrender the property. In re Stephens, 2013 Bankr. Lexis 1202, *28 (Bankr. N.D. NY. 2013).
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Instead, such action, surrendering the property, means relinquishing the debtor’s rights and taking no action to resist any efforts by the creditor to gain possession. Id. 11
U.S.C. § 521(a)(2)(B) requires that the Debtor within thirty days after the first date set for the meeting of creditors perform his intention. The meeting of the creditors was first set on January 7, 2020. Twenty-eight days have passed, and the Debtors have not performed their intention.
Thus, pursuant to § 362(h)(1)(B), the automatic stay is terminated. In the alternative the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Rosemarie Colangelo Represented By
M. Wayne Tucker
Movant(s):
BMW Bank of North America Represented By Cheryl A Skigin
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT" HONDA LEASE TRUST
EH
Docket 8
Service: Proper Opposition: None
11 U.S.C. § 365 (d)(1):
"In a case under Chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease…of personal property of the debtor within sixty days after the order for relief [, that is the date the petition was filed]…then such contract or lease is deemed rejected."
In this case, debtor, Mireya Chavez, filed a voluntary, no asset Chapter 7 petition on December 31, 2019. The trustee, Lynda T. Bui, has until February 29, 2020, sixty days after the petition was filed, to either reject or assume the lease.
However, a trustee may not assume an executory contract when there has been a default by the Debtor unless the trustee (1) cures the default or provide for adequate assurance that the default will be promptly cured, (2) compensates or provides adequate assurance that the trustee will promptly compensate the other party for any
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pecuniary loss to the party resulting from the default, and (3) provides adequate assurance of future performance. 11 U.S.C. § 365(b). Lynda T. Bui has neither responding nor stated her intention in regards to this executory contract. Thus, pursuant to Local Bankruptcy Rule 9013-(h), the Court may deem this to be consent to the granting or denial of the motion, as the case may be. Furthermore, Debtor has stated an intent to surrender the vehicle. Dkt No. 1, Official Form 108.
Based on the payment default and Debtor’s intention to surrender the vehicle, The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2), GRANT relief from Rule 4001(a)(3) stay, GRANT request under ¶ 2, and DENY relief, in the alternative, 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):
Mireya Chavez Represented By
Raj T Wadhwani
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: HUMBERTO PICCIOTTI
EH
Docket 9
Service: Improper Opposition: None
The Court has reviewed the motion, and the service was improper. Debtor had a Chapter 13 voluntary petition, case number 16:19-bk-13444-MH ("Prior Case") pending within the preceding one year. Pursuant to 11 U.S.C. § 362(c)(3)(C)(i)(II) (cc), a case is presumed to be filed not in good faith as to all creditors if "a previous case under [chapter 13]…in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to perform…the terms of a plan confirmed by the court…"
Debtor declared that his case was dismissed because his wife could not work. Dkt. No. 9, Decl. of Humberto Picciotti. His wife needed to complete her teaching credentials. Id. Thus, for the few months she was attempting to complete her teaching credentials, Debtor lacked that additional income. Id. This made him delinquent on his payments, which led his case to being dismissed. Id.
Debtor now says his wife is gainfully employed. Also, his two adult children have moved-in and are able to contribute towards monthly expenses. Id.
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However, the secured creditor, Lake Hills Maintenance Corporation (Lake Hills), whose collateral is the property at issue, 17930 Spring View Lane, Riverside, CA 92503, was not properly service pursuant to Rule 7004(h). Debtor served Lake Hills by certified mail at three places.
Lake Hills Maintenance Corp. Indian Ave, Suite 140 Riverside, CA 92506
Lake Hills Maintenance Corp. 31608 Railroad Canyon Road Sun City, CA 92587
Lake Hills Maint. Corp.
c/o The Avalon Management Group
P.O. Box 52982 Phoenix, AZ 85072-2982
None of these addresses fulfilled the service requirements for a corporation. Based on review of the Secretary of State’s website and prior claims filed, these are the addresses which the Court believes Lake Hills would have been properly served by certified mail:
Lake Hills Maintenance Corp.
Agent for Service of Process: Mark Jones 31608 Railroad Canyon Rd.
Canyon Lake, CA 92587
Or
Lake Hills Maintenance Corp c/o Fiore, Racobs & Powers 6820 Indian Avenue, Suite 140
Riverside, CA 92506
Thus the Court will CONTINUE the motion, so Debtor can properly serve Lake Hills.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Humberto Picciotti Represented By Barry E Borowitz
Movant(s):
Humberto Picciotti Represented By Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CHRISTOPHER LEE SAWYER
EH
Docket 13
Service: Proper—shortened notice Opposition: None
The Court has reviewed the motion, and the service was rendered on shortened notice. Debtor had a Chapter 13 voluntary petition, case number 16:19-bk-19480-MH ("Prior Case") pending within the preceding one year. Pursuant to 11 U.S.C. § 362(c)(3)(C) (i), a case is presumed to be filed not in good faith as to all creditors if "there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under Chapter…13"
A debtor can rebuttal this presumption by clear and convincing evidence. 3 Collier on Bankruptcy ¶ 362.06 (Richard Levin & Henry J. Sommer eds., 16th ed.). "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
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Debtor declared his Prior Case was dismissed because he requested his employer to change his payroll withholdings, but his request was rejected. His employer’s action caused him to not be able to make his first plan payment. Dkt No. 13, Decl. of Christopher Lee Sawyer. Debtor then asked the Court to voluntarily dismiss his case. His Prior Case was dismissed on January 10, 2020.
"After receiving a letter from [Debtor’s] employer stating his request was rejected…[Debtor’s employer] proceeded with actually making the changes to [his] deductions. Id. This change, stated by the Debtor, will allow him to make the required plan payments with no additional tax liability. Debtor’s declaration implies that a payroll withholdings adjustment has given him more discretionary income.
However, the evidence the Court has access to shows the contrary. Debtor’s Prior Case Schedule I shows gross wages of $9,339.00 and payroll deductions in the amount of $2,498.00, leaving a take-home-pay of $6,841.00. Compared to Debtor’s Schedule I which shows gross wages of $9,754.00 and deduction of 3,094.00, leaving a take-home pay of 6,660.00.
As a percentage of his income, Debtor’s deduction increased by 4.97% compared to those of his Prior Case, and his gross wages increased by 4.44% compared to those of his Prior Case. The increase in his payroll deductions could not be explained by the increase in his income. Thus, the Court is skeptical of Debtor’s declaration.
Furthermore, "[m]ere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor did not provide evidence more than mere statements. He neither provided the request made to the employer, the letter rejecting his request, nor did he provide a paystub showing the change in payroll deductions.
Debtor’s declaration, lacking detail or support, is insufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was filed in good faith regarding "what has changed so that the present plan is likely to succeed. In re Elliott-Cook, 357 B.R. 811, 814 (Bankr. N.D. Cal. 2006).
On that basis, the Court is inclined to DENY the motion to continue the stay.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Movant(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01100 Issa v. Delaney et al
Michael Issa against Ryan Delaney, John Wong, DOES 1 through 10, inclusive. (Charge To Estate)($350.00) for: 1) Breach of Fiduciary Duty; and Negligence [Demand for Jury Trial] Nature of Suit: (14 (Recovery of money/property - other)) (Ignatuk, Joseph)
From: 9/17/19, 10/15/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Ryan Delaney Represented By Paul A Reynolds
John Wong Represented By
David P Bleistein Lisa Hiraide
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
From: 8/28/18, 9/25/18, 10/30/18, 11/13/18, 12/18/18, 2/26/19, 3/27/19, 5/1/19, 7/30/19, 9/17/19, 11/19/19
EH
Docket 4
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
(2) Requiring Status Report EH
Docket 0
NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
EH
Docket 187
NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20
EH
Docket 96
NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
Jennifer Marie Marshall Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
EH
Docket 12
NONE LISTED -
Debtor(s):
Trevor Richard Lavoie Represented By James P Doan
Joint Debtor(s):
Jamie Suann Lavoie Represented By James P Doan
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Jeffrey Thomas Shreve Represented By Daniel King
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 12
NONE LISTED -
Debtor(s):
Gary Lynn Lupei Pro Se
Joint Debtor(s):
Celeste Suzette Judon Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 60
On August 10, 2016, Gerson Salazar ("Debtor") filed a Chapter 7 voluntary petition. Debtor had filed six bankruptcy cases since 2009, none of which had resulted in a discharge. On November 21, 2016, Debtor obtained a discharge.
On June 8, 2017, Trustee filed a notice of assets. Thereafter, Trustee employed counsel and secured turnover of certain estate property.
On October 2, 2018, Trustee filed a compromise motion, which was granted by the Court pursuant to order entered January 16, 2019. On October 29, 2019, Trustee filed a notice indicating that Debtor had defaulted under the compromise.
On January 14, 2020, Debtor’s attorney, Brian Soo-Hoo ("Counsel"), filed a motion to withdraw. Counsel declares that "Debtor has creased communications with my law office as of May 7, 2019." The Court has not received any opposition to Counsel’s motion to withdraw.
11:00 AM
Local Rule 2091 governs withdrawal of attorneys, and Local Rule 2091-1(a)(1) requires that Counsel filed a motion to withdraw when no substitution of attorney is contemplated. The only provision of Local Rule 2091 which provides any analytical guidance to the Court is Rule 2091-(e)(2), which states: "Unless good cause is shown and the ends of justice require, no substitution or withdrawal will be allowed that will cause unreasonable delay in prosecution of the case or proceeding to completion." Here, there is no plausible reason to believe that Counsel’s withdrawal will result in any delay in the proceedings because Debtor has ceased communicating with Counsel for approximately nine months.
Counsel cites California Rules of Professional Conduct Rule 3-700(c) in support of his motion to withdraw. The Court agrees that Counsel’s withdrawal is appropriate pursuant to Rule 3-700(c)(1)(d) because Debtor’s failure to communicate with Counsel has made it "unreasonably difficult" for Counsel to "carry out the employment effectively."
The Court is inclined to GRANT the motion, authorizing the withdrawal of Brian Soo-Hoo as attorney of record for Gerson Salazar.
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):
Gerson Mesori Salazar Represented By
11:00 AM
Movant(s):
Brian J Soo-Hoo
Gerson Mesori Salazar Represented By Brian J Soo-Hoo Brian J Soo-Hoo
Trustee(s):
Robert Whitmore (TR) Represented By Summer M Shaw Jenny L Doling
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
Nature of Suit: (62 (Dischargeability - 523(a)(2), false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)),(65 (Dischargeability - other)) (Cohen, Baruch)
From: 5/8/19, 6/5/19, 11/6/19 EH
Docket 1
NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
2:00 PM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
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
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
2:00 PM
2:00 PM
Adv#: 6:18-01062 Khalil v. Bastorous et al
Docket 82
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff") filed a complaint against Mark Bastorous & Bernadette Shenouda, (collectively, "Defendants"; individually, "Bastorous" and "Shenouda") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss.
Plaintiff subsequently amended his complaint on May 3, 2018. On June 4, 2018, Defendants filed a second motion to dismiss. Ultimately, on October 22, 2018, the Court granted the motion, requiring Plaintiff to provide more detail to meet the heightened pleading requirements for fraud. The next day, Plaintiff filed a second amended complaint. On November 6, 2018, Defendants filed a third motion to dismiss. On January 2, 2019, the Court granted the motion, requiring Plaintiff to clearly articulate the state law basis of the debt if Plaintiff was going to request a judgment which included monetary and punitive damages.
2:00 PM
On January 11, 2019, Plaintiff filed his third amended complaint. On January 25, 2019, Defendants filed another motion to dismiss. On February 26, 2019, Plaintiff filed his opposition. On April 10, 2019, the Court entered an order denying the motion to dismiss the third amended complaint. That same day, Defendants filed their answers.
On June 12, 2019, the Court held the first status conference after the filing of Defendants’ answers. Plaintiff did not appear at the status conference. On June 17, 2019, the Court issued an order to show cause why the case should not be dismissed for lack of prosecution. On July 15, 2019, twelve days after the response deadline and only two days before hearing, Plaintiff filed his opposition; the Court withdrew the order to show cause at the hearing.
On June 20, 2019, the Court entered a scheduling order. Among the provisions in the scheduling order were the following: (1) a discovery cut-off of November 30, 2019;
a deadline to file a joint status report of January 8, 2020; and (3) the continuation of the status conference to January 15, 2020.
On December 6, 2019, Plaintiff filed a motion to compel the deposition of Bastorous. On December 30, 2019, Defendants filed a motion to compel the deposition of Plaintiff. Both motions were opposed.
On January 15, 2020, the Court held a continued status conference. For the second time in a row, Plaintiff did not appear and did not file any status report. The Court issued another order to show cause why the case should not be dismissed for lack of prosecution (the "OSC") [Dkt. No. 82]. On January 24, 2020, Plaintiff filed a late response to the OSC.
DISCOVERY DISPUTE
2:00 PM
Plaintiff’s declaration in support of his motion to compel deposition and for sanctions [Dkt. No 72] asserts that Plaintiff attempted to serve Defendants with a notice of deposition and request for production of documents on three different occasions: (1) August 12; (2) September 27; (3) October 25. As set forth in a letter dated November 26, 2019, attached to Plaintiff’s motion, Plaintiff asserts that Defendants objected to the notice of depositions on the grounds that: (a) the dates were unilaterally selected in violation of the California Civility Guidelines; and (b) the witnesses were unavailable. Plaintiff requests that this Court compel the deposition of Bastorous and sanction Bastorous and/or his counsel under FED. R. CIV. P. Rule 37 and Local Rule 7026-1(c) (4).
On December 26, 2019, Defendants filed their opposition to the motion to compel. In opposition Defendants raise four different arguments: (1) that the motion to compel is untimely because the discovery deadline has expired; (2) Plaintiff has refused to be deposed himself; (3) Plaintiff failed to meet and confer; and (4) if this Court compels the deposition of Bastorous after the discovery deadline, it should also compel the attendance of Plaintiff. Four days after filing its opposition, Defendants filed their own motion to compel deposition and request for sanctions [Dkt. No 76].
As outlined in detail in the pleadings, the representation of Plaintiff in this proceeding has been unclear, at best. The complaint was filed by Wayne Suojanen ("Suojanen") on March 12, 2018. Suojanen was ineligible to practice law between July 3 and September 10, 2018, and between December 19, 2018, and June 19, 2019. Since July 28, 2019, Suojanen has been inactive. The Court notes that during the first period of inactivity, Suojanen improperly filed multiple documents with the Court. On January 11, 2019, Suojanen, at the time ineligible to practice law, substituted out of the case, leaving Plaintiff proceeding pro se (although not before, again, improperly filing a pleading). After he substituted out, and while being ineligible to practice law, Suojanen filed Plaintiff’s memorandum (successfully) opposing Defendants’ motion to dismiss the case. At the hearing on Defendants’ motion to dismiss, however, Plaintiff had a special appearance attorney, Andrew Weiss, argue the matter. The Court further notes, however, that it was Suojanen who filed the late opposition to the Court’s first OSC.
Now, on January 24, 2020, the Court has received filings from a different attorney,
2:00 PM
Larry Noe ("Noe"), who is not the attorney of record for Plaintiff, but who states that he has been retained on a limited scope. The Court notes that Noe previously filed pleadings on behalf of Plaintiff, without being attorney of record, on September 10 and 12, 2018.
In docket numbers 74 and 76, Defendants assert, in detail, that they have been unable to effectively communicate with Plaintiff because he has, for the vast majority of the case, not been represented by eligible counsel and has refused to provide any contact information other than a mailing address in Texas. The Court also notes that Defendants have provided evidence that they attempted to obtain contact information from Suojanen, who also did not know how to contact Plaintiff. As a result, Defendants state that they have been unable to meet and confer with Plaintiff, and that attempts to schedule a deposition at a mutually agreeable time have been frustrated.
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 therefore 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.
Here, the discovery deadline in the instant adversary proceeding was set as November 30, 2019, pursuant to Court order entered June 20, 2019. Because neither party requested an extension of the discovery deadline prior to the deadline elapsing, an extension of the discovery deadline requires a motion
2:00 PM
which establishes excusable neglect. Neither party has filed a motion requesting that the deadline be extended.
While both parties have filed motions to compel depositions, and while the pleadings filed by both parties acknowledge the passing of the discovery deadline, the Court is not inclined to deem this deadline to have been waived. Indeed, Defendants’ first argument made in opposition to Plaintiff’s motion to compel deposition is that the motion is untimely and should be denied. Only in the alternative do Defendants argue that, if the Court is to consider compelling the deposition of Basotorus, the Court should also compel the deposition of Plaintiff. Defendants not having waived the discovery deadline, and Plaintiff not having properly moved to extend the deadline, the Court is inclined to deny both motions to compel.
Additionally, this Court issued an order to show cause why the case should not be dismissed for failure to prosecute pursuant to Local Rule 7016-(1)(g) and FED. R. CIV. P. Rule 16(f)(1)(B)-(C). The Court notes that Plaintiff’s prosecution of this proceeding has been wholly inadequate. Specifically, the Court notes the following deficiencies:
Plaintiff did not appear at either of the status conferences held after Defendants filed their answers;
Plaintiff did not file or assist in the preparation of a joint status report for either of the conferences;
Plaintiff did not abide by the deadlines established in this Court’s scheduling order entered June 20, 2019;
Plaintiff has not cooperated with Defendants in that Plaintiff has refused to provide any contact information other than a physical address located in Texas;
Plaintiff has not retained eligible counsel, has used ineligible counsel to draft and file pleadings, and appears to have used the legal services
2:00 PM
of an attorney who has not formerly substituted into this case;
Plaintiff’s filings in this case have regularly been untimely.
FED. R. CIV. P. Rule 16(f)(1), incorporated into bankruptcy proceedings by FED.
R. BANKR. P. Rule 7016, provides that the Court may issue "any just orders" against a party that: (a) fails to appear at a status conference or pre-trial conference; (b) is substantially unprepared or does not participate in good faith; or (c) fails to obey a scheduling or pretrial order. Here, the Court finds that each of these provisions is applicable to the instant proceeding. Specifically, Plaintiff has failed to appear at multiple status conferences, has been substantially unprepared to participate in this proceeding, and has failed to obey the Court’s scheduling order. Additionally, the Court notes that Plaintiff’s prosecution of this proceeding has likely resulted in several ethical violations given that it appears several pleadings have been filed by an attorney ineligible to practice law, and other pleadings appear to have been drafted by an attorney who did not sign the pleading, and who is either ineligible to practice law or who is not the attorney of record in this case.
Based upon Plaintiff’s repeated failure to: (1) appear at status conferences; (2) to participate in or prepare for status conferences; (3) obey the Court’s scheduling order;
(4) timely file documents; (5) retain eligible and competent counsel; and (6) meaningfully cooperate with Defendants during the discovery phase, the Court is inclined to DISMISS the proceeding for lack of proper prosecution.
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
Plaintiff(s):
Anis Khalil Pro Se
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
From: 1/8/20 EH
Docket 72
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff") filed a complaint against Mark Bastorous & Bernadette Shenouda, (collectively, "Defendants"; individually, "Bastorous" and "Shenouda") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss.
Plaintiff subsequently amended his complaint on May 3, 2018. On June 4, 2018, Defendants filed a second motion to dismiss. Ultimately, on October 22, 2018, the Court granted the motion, requiring Plaintiff to provide more detail to meet the heightened pleading requirements for fraud. The next day, Plaintiff filed a second amended complaint. On November 6, 2018, Defendants filed a third motion to dismiss. On January 2, 2019, the Court granted the motion, requiring Plaintiff to clearly articulate the state law basis of the debt if Plaintiff was going to request a judgment which included monetary and punitive damages.
2:00 PM
On January 11, 2019, Plaintiff filed his third amended complaint. On January 25, 2019, Defendants filed another motion to dismiss. On February 26, 2019, Plaintiff filed his opposition. On April 10, 2019, the Court entered an order denying the motion to dismiss the third amended complaint. That same day, Defendants filed their answers.
On June 12, 2019, the Court held the first status conference after the filing of Defendants’ answers. Plaintiff did not appear at the status conference. On June 17, 2019, the Court issued an order to show cause why the case should not be dismissed for lack of prosecution. On July 15, 2019, twelve days after the response deadline and only two days before hearing, Plaintiff filed his opposition; the Court withdrew the order to show cause at the hearing.
On June 20, 2019, the Court entered a scheduling order. Among the provisions in the scheduling order were the following: (1) a discovery cut-off of November 30, 2019;
a deadline to file a joint status report of January 8, 2020; and (3) the continuation of the status conference to January 15, 2020.
On December 6, 2019, Plaintiff filed a motion to compel the deposition of Bastorous. On December 30, 2019, Defendants filed a motion to compel the deposition of Plaintiff. Both motions were opposed.
On January 15, 2020, the Court held a continued status conference. For the second time in a row, Plaintiff did not appear and did not file any status report. The Court issued another order to show cause why the case should not be dismissed for lack of prosecution (the "OSC") [Dkt. No. 82]. On January 24, 2020, Plaintiff filed a late response to the OSC.
DISCOVERY DISPUTE
2:00 PM
Plaintiff’s declaration in support of his motion to compel deposition and for sanctions [Dkt. No 72] asserts that Plaintiff attempted to serve Defendants with a notice of deposition and request for production of documents on three different occasions: (1) August 12; (2) September 27; (3) October 25. As set forth in a letter dated November 26, 2019, attached to Plaintiff’s motion, Plaintiff asserts that Defendants objected to the notice of depositions on the grounds that: (a) the dates were unilaterally selected in violation of the California Civility Guidelines; and (b) the witnesses were unavailable. Plaintiff requests that this Court compel the deposition of Bastorous and sanction Bastorous and/or his counsel under FED. R. CIV. P. Rule 37 and Local Rule 7026-1(c) (4).
On December 26, 2019, Defendants filed their opposition to the motion to compel. In opposition Defendants raise four different arguments: (1) that the motion to compel is untimely because the discovery deadline has expired; (2) Plaintiff has refused to be deposed himself; (3) Plaintiff failed to meet and confer; and (4) if this Court compels the deposition of Bastorous after the discovery deadline, it should also compel the attendance of Plaintiff. Four days after filing its opposition, Defendants filed their own motion to compel deposition and request for sanctions [Dkt. No 76].
As outlined in detail in the pleadings, the representation of Plaintiff in this proceeding has been unclear, at best. The complaint was filed by Wayne Suojanen ("Suojanen") on March 12, 2018. Suojanen was ineligible to practice law between July 3 and September 10, 2018, and between December 19, 2018, and June 19, 2019. Since July 28, 2019, Suojanen has been inactive. The Court notes that during the first period of inactivity, Suojanen improperly filed multiple documents with the Court. On January 11, 2019, Suojanen, at the time ineligible to practice law, substituted out of the case, leaving Plaintiff proceeding pro se (although not before, again, improperly filing a pleading). After he substituted out, and while being ineligible to practice law, Suojanen filed Plaintiff’s memorandum (successfully) opposing Defendants’ motion to dismiss the case. At the hearing on Defendants’ motion to dismiss, however, Plaintiff had a special appearance attorney, Andrew Weiss, argue the matter. The Court further notes, however, that it was Suojanen who filed the late opposition to the Court’s first OSC.
2:00 PM
Now, on January 24, 2020, the Court has received filings from a different attorney, Larry Noe ("Noe"), who is not the attorney of record for Plaintiff, but who states that he has been retained on a limited scope. The Court notes that Noe previously filed pleadings on behalf of Plaintiff, without being attorney of record, on September 10 and 12, 2018.
In docket numbers 74 and 76, Defendants assert, in detail, that they have been unable to effectively communicate with Plaintiff because he has, for the vast majority of the case, not been represented by eligible counsel and has refused to provide any contact information other than a mailing address in Texas. The Court also notes that Defendants have provided evidence that they attempted to obtain contact information from Suojanen, who also did not know how to contact Plaintiff. As a result, Defendants state that they have been unable to meet and confer with Plaintiff, and that attempts to schedule a deposition at a mutually agreeable time have been frustrated.
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 therefore 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.
Here, the discovery deadline in the instant adversary proceeding was set as November 30, 2019, pursuant to Court order entered June 20, 2019. Because
2:00 PM
neither party requested an extension of the discovery deadline prior to the deadline elapsing, an extension of the discovery deadline requires a motion which establishes excusable neglect. Neither party has filed a motion requesting that the deadline be extended.
While both parties have filed motions to compel depositions, and while the pleadings filed by both parties acknowledge the passing of the discovery deadline, the Court is not inclined to deem this deadline to have been waived. Indeed, Defendants’ first argument made in opposition to Plaintiff’s motion to compel deposition is that the motion is untimely and should be denied. Only in the alternative do Defendants argue that, if the Court is to consider compelling the deposition of Basotorus, the Court should also compel the deposition of Plaintiff. Defendants not having waived the discovery deadline, and Plaintiff not having properly moved to extend the deadline, the Court is inclined to deny both motions to compel.
Additionally, this Court issued an order to show cause why the case should not be dismissed for failure to prosecute pursuant to Local Rule 7016-(1)(g) and FED. R. CIV. P. Rule 16(f)(1)(B)-(C). The Court notes that Plaintiff’s prosecution of this proceeding has been wholly inadequate. Specifically, the Court notes the following deficiencies:
Plaintiff did not appear at either of the status conferences held after Defendants filed their answers;
Plaintiff did not file or assist in the preparation of a joint status report for either of the conferences;
Plaintiff did not abide by the deadlines established in this Court’s scheduling order entered June 20, 2019;
Plaintiff has not cooperated with Defendants in that Plaintiff has refused to provide any contact information other than a physical address located in Texas;
Plaintiff has not retained eligible counsel, has used ineligible counsel
2:00 PM
to draft and file pleadings, and appears to have used the legal services of an attorney who has not formerly substituted into this case;
Plaintiff’s filings in this case have regularly been untimely.
FED. R. CIV. P. Rule 16(f)(1), incorporated into bankruptcy proceedings by FED.
R. BANKR. P. Rule 7016, provides that the Court may issue "any just orders" against a party that: (a) fails to appear at a status conference or pre-trial conference; (b) is substantially unprepared or does not participate in good faith; or (c) fails to obey a scheduling or pretrial order. Here, the Court finds that each of these provisions is applicable to the instant proceeding. Specifically, Plaintiff has failed to appear at multiple status conferences, has been substantially unprepared to participate in this proceeding, and has failed to obey the Court’s scheduling order. Additionally, the Court notes that Plaintiff’s prosecution of this proceeding has likely resulted in several ethical violations given that it appears several pleadings have been filed by an attorney ineligible to practice law, and other pleadings appear to have been drafted by an attorney who did not sign the pleading, and who is either ineligible to practice law or who is not the attorney of record in this case.
Based upon Plaintiff’s repeated failure to: (1) appear at status conferences; (2) to participate in or prepare for status conferences; (3) obey the Court’s scheduling order;
(4) timely file documents; (5) retain eligible and competent counsel; and (6) meaningfully cooperate with Defendants during the discovery phase, the Court is inclined to DISMISS the proceeding for lack of proper prosecution.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By
2:00 PM
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):
Anis Khalil Pro Se
Plaintiff(s):
Anis Khalil Pro Se
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 76
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff") filed a complaint against Mark Bastorous & Bernadette Shenouda, (collectively, "Defendants"; individually, "Bastorous" and "Shenouda") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss.
Plaintiff subsequently amended his complaint on May 3, 2018. On June 4, 2018, Defendants filed a second motion to dismiss. Ultimately, on October 22, 2018, the Court granted the motion, requiring Plaintiff to provide more detail to meet the heightened pleading requirements for fraud. The next day, Plaintiff filed a second amended complaint. On November 6, 2018, Defendants filed a third motion to dismiss. On January 2, 2019, the Court granted the motion, requiring Plaintiff to clearly articulate the state law basis of the debt if Plaintiff was going to request a judgment which included monetary and punitive damages.
2:00 PM
On January 11, 2019, Plaintiff filed his third amended complaint. On January 25, 2019, Defendants filed another motion to dismiss. On February 26, 2019, Plaintiff filed his opposition. On April 10, 2019, the Court entered an order denying the motion to dismiss the third amended complaint. That same day, Defendants filed their answers.
On June 12, 2019, the Court held the first status conference after the filing of Defendants’ answers. Plaintiff did not appear at the status conference. On June 17, 2019, the Court issued an order to show cause why the case should not be dismissed for lack of prosecution. On July 15, 2019, twelve days after the response deadline and only two days before hearing, Plaintiff filed his opposition; the Court withdrew the order to show cause at the hearing.
On June 20, 2019, the Court entered a scheduling order. Among the provisions in the scheduling order were the following: (1) a discovery cut-off of November 30, 2019;
a deadline to file a joint status report of January 8, 2020; and (3) the continuation of the status conference to January 15, 2020.
On December 6, 2019, Plaintiff filed a motion to compel the deposition of Bastorous. On December 30, 2019, Defendants filed a motion to compel the deposition of Plaintiff. Both motions were opposed.
On January 15, 2020, the Court held a continued status conference. For the second time in a row, Plaintiff did not appear and did not file any status report. The Court issued another order to show cause why the case should not be dismissed for lack of prosecution (the "OSC") [Dkt. No. 82]. On January 24, 2020, Plaintiff filed a late response to the OSC.
DISCOVERY DISPUTE
2:00 PM
Plaintiff’s declaration in support of his motion to compel deposition and for sanctions [Dkt. No 72] asserts that Plaintiff attempted to serve Defendants with a notice of deposition and request for production of documents on three different occasions: (1) August 12; (2) September 27; (3) October 25. As set forth in a letter dated November 26, 2019, attached to Plaintiff’s motion, Plaintiff asserts that Defendants objected to the notice of depositions on the grounds that: (a) the dates were unilaterally selected in violation of the California Civility Guidelines; and (b) the witnesses were unavailable. Plaintiff requests that this Court compel the deposition of Bastorous and sanction Bastorous and/or his counsel under FED. R. CIV. P. Rule 37 and Local Rule 7026-1(c) (4).
On December 26, 2019, Defendants filed their opposition to the motion to compel. In opposition Defendants raise four different arguments: (1) that the motion to compel is untimely because the discovery deadline has expired; (2) Plaintiff has refused to be deposed himself; (3) Plaintiff failed to meet and confer; and (4) if this Court compels the deposition of Bastorous after the discovery deadline, it should also compel the attendance of Plaintiff. Four days after filing its opposition, Defendants filed their own motion to compel deposition and request for sanctions [Dkt. No 76].
As outlined in detail in the pleadings, the representation of Plaintiff in this proceeding has been unclear, at best. The complaint was filed by Wayne Suojanen ("Suojanen") on March 12, 2018. Suojanen was ineligible to practice law between July 3 and September 10, 2018, and between December 19, 2018, and June 19, 2019. Since July 28, 2019, Suojanen has been inactive. The Court notes that during the first period of inactivity, Suojanen improperly filed multiple documents with the Court. On January 11, 2019, Suojanen, at the time ineligible to practice law, substituted out of the case, leaving Plaintiff proceeding pro se (although not before, again, improperly filing a pleading). After he substituted out, and while being ineligible to practice law, Suojanen filed Plaintiff’s memorandum (successfully) opposing Defendants’ motion to dismiss the case. At the hearing on Defendants’ motion to dismiss, however, Plaintiff had a special appearance attorney, Andrew Weiss, argue the matter. The Court further notes, however, that it was Suojanen who filed the late opposition to the Court’s first OSC.
Now, on January 24, 2020, the Court has received filings from a different attorney,
2:00 PM
Larry Noe ("Noe"), who is not the attorney of record for Plaintiff, but who states that he has been retained on a limited scope. The Court notes that Noe previously filed pleadings on behalf of Plaintiff, without being attorney of record, on September 10 and 12, 2018.
In docket numbers 74 and 76, Defendants assert, in detail, that they have been unable to effectively communicate with Plaintiff because he has, for the vast majority of the case, not been represented by eligible counsel and has refused to provide any contact information other than a mailing address in Texas. The Court also notes that Defendants have provided evidence that they attempted to obtain contact information from Suojanen, who also did not know how to contact Plaintiff. As a result, Defendants state that they have been unable to meet and confer with Plaintiff, and that attempts to schedule a deposition at a mutually agreeable time have been frustrated.
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 therefore 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.
Here, the discovery deadline in the instant adversary proceeding was set as November 30, 2019, pursuant to Court order entered June 20, 2019. Because neither party requested an extension of the discovery deadline prior to the deadline elapsing, an extension of the discovery deadline requires a motion
2:00 PM
which establishes excusable neglect. Neither party has filed a motion requesting that the deadline be extended.
While both parties have filed motions to compel depositions, and while the pleadings filed by both parties acknowledge the passing of the discovery deadline, the Court is not inclined to deem this deadline to have been waived. Indeed, Defendants’ first argument made in opposition to Plaintiff’s motion to compel deposition is that the motion is untimely and should be denied. Only in the alternative do Defendants argue that, if the Court is to consider compelling the deposition of Basotorus, the Court should also compel the deposition of Plaintiff. Defendants not having waived the discovery deadline, and Plaintiff not having properly moved to extend the deadline, the Court is inclined to deny both motions to compel.
Additionally, this Court issued an order to show cause why the case should not be dismissed for failure to prosecute pursuant to Local Rule 7016-(1)(g) and FED. R. CIV. P. Rule 16(f)(1)(B)-(C). The Court notes that Plaintiff’s prosecution of this proceeding has been wholly inadequate. Specifically, the Court notes the following deficiencies:
Plaintiff did not appear at either of the status conferences held after Defendants filed their answers;
Plaintiff did not file or assist in the preparation of a joint status report for either of the conferences;
Plaintiff did not abide by the deadlines established in this Court’s scheduling order entered June 20, 2019;
Plaintiff has not cooperated with Defendants in that Plaintiff has refused to provide any contact information other than a physical address located in Texas;
Plaintiff has not retained eligible counsel, has used ineligible counsel to draft and file pleadings, and appears to have used the legal services
2:00 PM
of an attorney who has not formerly substituted into this case;
Plaintiff’s filings in this case have regularly been untimely.
FED. R. CIV. P. Rule 16(f)(1), incorporated into bankruptcy proceedings by FED.
R. BANKR. P. Rule 7016, provides that the Court may issue "any just orders" against a party that: (a) fails to appear at a status conference or pre-trial conference; (b) is substantially unprepared or does not participate in good faith; or (c) fails to obey a scheduling or pretrial order. Here, the Court finds that each of these provisions is applicable to the instant proceeding. Specifically, Plaintiff has failed to appear at multiple status conferences, has been substantially unprepared to participate in this proceeding, and has failed to obey the Court’s scheduling order. Additionally, the Court notes that Plaintiff’s prosecution of this proceeding has likely resulted in several ethical violations given that it appears several pleadings have been filed by an attorney ineligible to practice law, and other pleadings appear to have been drafted by an attorney who did not sign the pleading, and who is either ineligible to practice law or who is not the attorney of record in this case.
Based upon Plaintiff’s repeated failure to: (1) appear at status conferences; (2) to participate in or prepare for status conferences; (3) obey the Court’s scheduling order;
timely file documents; (5) retain eligible and competent counsel; and (6) meaningfully cooperate with Defendants during the discovery phase, the Court is inclined to DISMISS the proceeding for lack of proper prosecution.
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
Plaintiff(s):
Anis Khalil Pro Se
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
AND FOR FRAUD, DECEIT AND/OR FALSE PROMISE by Wayne W Suojanen on behalf of Anis Khalil against Mark Bastorous. (RE: related document(s)1 Adversary case 6:18-ap-01062. Complaint by Anis Khalil against Mark Bastorous, Bernadette Shenouda. false pretenses, false representation, actual fraud)),(65 (Dischargeability - other)),(14 (Recovery of money/property - other)),(13 (Recovery of money/property - 548 fraudulent transfer)) filed by Plaintiff Anis Khalil). (Suojanen, Wayne)
From: 3/27/19, 6/12/19, 1/15/20 EH
Docket 43
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):
Anis Khalil Pro Se
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
MOVANT: NEWREZ LCC
EH
Docket 59
Service: Proper Opposition: Late
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Brenda Fleming Bell Represented By Suzette Douglas
Movant(s):
NewRez LLC dba Shellpoint Represented By Kirsten Martinez Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 1/7/20 EH
Docket 35
Service: Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jason Allen Colleasure Represented By Dana Travis
Joint Debtor(s):
Julia Ann Colleasure Represented By Dana Travis
Movant(s):
Freedom Mortgage Corporation Represented By Christina J Khil
11:00 AM
Trustee(s):
Dane W Exnowski
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SELENE FINANCE LP
EH
Docket 61
Service: Proper Opposition: Yes
Based upon the post-confirmation arrears evidenced in the motion, and considering that the reply indicates that Debtor has not filed a loan modification application, the Court is inclined to GRANT the motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Dave Anthony Williams Represented By Paul Y Lee
Movant(s):
Selene Finance LP Represented By
Diana Torres-Brito Bonni S Mantovani Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PINGORA LOAN SERVICING LLC
EH
Docket 47
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Movant(s):
Pingora Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES, LLC
EH
Docket 27
Service: Proper Opposition: Late
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Nagazaki Lung Represented By Nathan Fransen
Joint Debtor(s):
Veronica Lung Represented By Nathan Fransen
Movant(s):
Carrington Mortgage Services, LLC Represented By
Anna Landa
Diana Torres-Brito
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES LLC
From: 1/7/20 EH
Docket 33
Service is Proper Opposition: Late
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Malta Centeno Lambert Represented By Yelena Gurevich
Movant(s):
Carrington Mortgage Services, LLC Represented By
Eric P Enciso Sean C Ferry Erin Elam
Christopher Giacinto
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 34
NONE LISTED -
Debtor(s):
Keary A. Harris Represented By
Patricia M Ashcraft - SUSPENDED BK - Gregory Ashcraft
Joint Debtor(s):
Kimberly H. Olson-Harris Represented By
Patricia M Ashcraft - SUSPENDED BK - Gregory Ashcraft
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 1/7/20 EH
Docket 25
Service is Proper Opposition: Late
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SUN WEST MORTGAGE COMPANY, INC
EH
Docket 33
NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Movant(s):
Sun West Mortgage Company Inc. Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 27
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Michael Colbus Represented By Andrew Nguyen
Joint Debtor(s):
Lisa Colbus Represented By
Andrew Nguyen
Movant(s):
Deutsche Bank National Trust Represented By
11:00 AM
Trustee(s):
Kirsten Martinez
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: VW CREDIT LEASING, LTD
EH
Docket 23
Service: Proper Opposition: None
11 U.S.C. § 365(p)(1) provides that upon the rejection of a lease of personal property, that personal property is no longer property of the estate and the automatic stay is automatically terminated. Here, Debtor’s Chapter 13 plan having provided for rejection of the lease with Movant, the automatic stay has terminated as a matter of law. The Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
James Hughey Jr. Represented By Dana Travis
Movant(s):
VW Credit Leasing, LTD. Represented By Kirsten Martinez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT requests 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):
Noelia Julissa Ulloa Represented By Lauren M Foley
Movant(s):
CONSUMER PORTFOLIO Represented By
Kristin A Zilberstein
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: JEFF BOOK
EH
Docket 17
APPEARANCES REQUIRED. Eric Morris to personally appear.
Debtor(s):
Jeff Book Represented By
Eric C Morris
Movant(s):
Jeff Book Represented By
Eric C Morris
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HUMBERTO PICCIOTTI
From: 2/4/20 EH
Docket 9
Service: Improper Opposition: None
The Court has reviewed the motion, and the service was improper. Debtor had a Chapter 13 voluntary petition, case number 16:19-bk-13444-MH ("Prior Case") pending within the preceding one year. Pursuant to 11 U.S.C. § 362(c)(3)(C)(i)(II) (cc), a case is presumed to be filed not in good faith as to all creditors if "a previous case under [chapter 13]…in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to perform…the terms of a plan confirmed by the court…"
Debtor declared that his case was dismissed because his wife could not work. Dkt. No. 9, Decl. of Humberto Picciotti. His wife needed to complete her teaching credentials. Id. Thus, for the few months she was attempting to complete her teaching credentials, Debtor lacked that additional income. Id. This made him delinquent on his payments, which led his case to being dismissed. Id.
11:00 AM
Debtor now says his wife is gainfully employed. Also, his two adult children have moved-in and are able to contribute towards monthly expenses. Id.
However, the secured creditor, Lake Hills Maintenance Corporation (Lake Hills), whose collateral is the property at issue, 17930 Spring View Lane, Riverside, CA 92503, was not properly service pursuant to Rule 7004(h). Debtor served Lake Hills by certified mail at three places.
Lake Hills Maintenance Corp. Indian Ave, Suite 140 Riverside, CA 92506
Lake Hills Maintenance Corp. 31608 Railroad Canyon Road Sun City, CA 92587
Lake Hills Maint. Corp.
c/o The Avalon Management Group
P.O. Box 52982 Phoenix, AZ 85072-2982
None of these addresses fulfilled the service requirements for a corporation. Based on review of the Secretary of State’s website and prior claims filed, these are the addresses which the Court believes Lake Hills would have been properly served by certified mail:
Lake Hills Maintenance Corp.
Agent for Service of Process: Mark Jones 31608 Railroad Canyon Rd.
Canyon Lake, CA 92587
Or
Lake Hills Maintenance Corp c/o Fiore, Racobs & Powers 6820 Indian Avenue, Suite 140
Riverside, CA 92506
11:00 AM
Thus the Court will CONTINUE the motion, so Debtor can properly serve Lake Hills. APPEARANCES REQUIRED.
Debtor(s):
Humberto Picciotti Represented By Barry E Borowitz
Movant(s):
Humberto Picciotti Represented By Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CHRISTOPHER LEE SAWYER
From: 2/4/20 EH
Docket 13
Service: Proper—shortened notice Opposition: None
The Court has reviewed the motion, and the service was rendered on shortened notice. Debtor had a Chapter 13 voluntary petition, case number 16:19-bk-19480-MH ("Prior Case") pending within the preceding one year. Pursuant to 11 U.S.C. § 362(c)(3)(C) (i), a case is presumed to be filed not in good faith as to all creditors if "there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under Chapter…13"
A debtor can rebuttal this presumption by clear and convincing evidence. 3 Collier on Bankruptcy ¶ 362.06 (Richard Levin & Henry J. Sommer eds., 16th ed.). "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006)
11:00 AM
(citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor declared his Prior Case was dismissed because he requested his employer to change his payroll withholdings, but his request was rejected. His employer’s action caused him to not be able to make his first plan payment. Dkt No. 13, Decl. of Christopher Lee Sawyer. Debtor then asked the Court to voluntarily dismiss his case. His Prior Case was dismissed on January 10, 2020.
"After receiving a letter from [Debtor’s] employer stating his request was rejected…[Debtor’s employer] proceeded with actually making the changes to [his] deductions. Id. This change, stated by the Debtor, will allow him to make the required plan payments with no additional tax liability. Debtor’s declaration implies that a payroll withholdings adjustment has given him more discretionary income.
However, the evidence the Court has access to shows the contrary. Debtor’s Prior Case Schedule I shows gross wages of $9,339.00 and payroll deductions in the amount of $2,498.00, leaving a take-home-pay of $6,841.00. Compared to Debtor’s Schedule I which shows gross wages of $9,754.00 and deduction of 3,094.00, leaving a take-home pay of 6,660.00.
As a percentage of his income, Debtor’s deduction increased by 4.97% compared to those of his Prior Case, and his gross wages increased by 4.44% compared to those of his Prior Case. The increase in his payroll deductions could not be explained by the increase in his income. Thus, the Court is skeptical of Debtor’s declaration.
Furthermore, "[m]ere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor did not provide evidence more than mere statements. He neither provided the request made to the employer, the letter rejecting his request, nor did he provide a paystub showing the change in payroll deductions.
Debtor’s declaration, lacking detail or support, is insufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was filed in good faith regarding "what has changed so that the present plan is likely to succeed. In re Elliott-Cook, 357 B.R. 811, 814 (Bankr. N.D. Cal. 2006).
11:00 AM
On that basis, the Court is inclined to DENY the motion to continue the stay. APPEARANCES REQUIRED.
Debtor(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Movant(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 36
On November 11, 2019, Enrique & Flavia Garcia ("Debtors") filed a Chapter 11 voluntary petition.
On December 6, 2019, Debtors filed an application to employ Michael R. Totaro and the Law Offices of Totaro & Shanahan (collectively, "Counsel") as general insolvency counsel. On January 7, 2020, UST filed a limited objection to the employment application. UST asserted that "the disclosures relating to potentially adverse parties are incomplete, require clarification, and raise concerns regarding the diligence and/or effectiveness of the search process used by proposed counsel." Specifically, UST referenced multiple statements in the employment application which state that Counsel "may have been adversaries to some of the debtors’ creditors." On January 18, 2020, Counsel filed a response, consisting of a supplemental declaration from Counsel. As part of that supplemental declaration, Counsel states: "there is nothing about those prior cases that would suggest our firm would not be disinterested in this case." On January 31, 2020, UST withdrew its supplemental opposition.
2:00 PM
FED. R. BANKR. P. Rule 2014(a) states:
An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professionals pursuant to § 327, § 1103, or § 1114 of the Code shall be made only on application of the trustee or committee. The application shall be filed and, unless the case is a chapter 9 municipality case, a copy of the application shall be transmitted by the applicant to the United States trustee. The application shall state the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. The application shall be accompanied by a verified statement of the person to be employed setting forth the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee.
UST having withdrawn its objection, the Court having not receiving any unresolved objection to the employment of Counsel, notice appearing proper, and good cause appearing,
The Court is inclined to APPROVE the application, authorizing the employment of Counsel.
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):
Enrique Garcia Represented By Michael R Totaro
Joint Debtor(s):
Flavia C Garcia Represented By Michael R Totaro
Movant(s):
Enrique Garcia Represented By Michael R Totaro Michael R Totaro
Flavia C Garcia Represented By Michael R Totaro
2:00 PM
From: 12/10/19 Also #16
EH
Docket 1
NONE LISTED -
Debtor(s):
Enrique Garcia Represented By Michael R Totaro
Joint Debtor(s):
Flavia C Garcia Represented By Michael R Totaro
11:00 AM
Docket 24
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: $ 1,279.00
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):
Christopher Elwinn Cross Represented By
Shawn Anthony Doan
Joint Debtor(s):
Heather Rae Cross Represented By
Shawn Anthony Doan
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 157
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: $ 6,533.01 Trustee Expenses: $ 776.33
Attorney Fees: $ 16,335.00 Attorney Costs: $ 219.01
Accountant Fees: $2,890.50 Accountant Costs: $423.50
Special Counsel Fees: $30,000 Court Costs: $350
Franchise Tax Board: $2,852.50
11:00 AM
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):
Manors San Bernardino Ave LLC Represented By
Gaurav Datta - DISBARRED -
Trustee(s):
John P Pringle (TR) Represented By Larry D Simons Scott Talkov Frank X Ruggier
11:00 AM
EH
Docket 65
NONE LISTED -
Debtor(s):
Richard Evans Represented By Lane K Bogard
Joint Debtor(s):
Deborah Evans Represented By Lane K Bogard
Movant(s):
Lynda T. Bui (TR) Represented By Erin P Moriarty
Trustee(s):
Lynda T. Bui (TR) Represented By Erin P Moriarty
11:00 AM
EH
Docket 21
NONE LISTED -
Debtor(s):
Laura Valles Represented By
Dana Travis
Movant(s):
John P Pringle (TR) Represented By Charles W Daff
Trustee(s):
John P Pringle (TR) Represented By Charles W Daff
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)
(AS TO REMAINING DEFENDANTS)
(Jeff Converse - dismissed 12/2/19)
(Provident Trust Group LLC - dismissed 12/17/19) (De Loeon & Washburn, P.C. - dismissed 1/8/20) (Thomas Washburn - dismissed 1/8/20)
(Hector De Leon - dismissed 1/8/20)
From: 8/29/18, 11/28/18, 1/9/19, 4/10/19, 11/6/19
Also #6 EH
Docket 1
NONE LISTED -
2:00 PM
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
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
Rafael R Garcia-Salgado
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
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)
(AS TO CONESTOGA)
Also #5 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
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
Rafael R Garcia-Salgado
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01114 David M. Goodrich, Chapter 11 Trustee v. The Blue Law Group, Inc, a
From: 7/10/18, 2/27/19, 6/12/19, 8/28/19, 11/6/19
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 Mark S Horoupian
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#: 6:18-01113 David M. Goodrich, Chapter 11 Trustee v. Netreva, Inc., a California
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19
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
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19
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
2:00 PM
Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19
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
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, 11/27/18, 2/26/19, 4/10/19, 6/12/19,
8/28/19, 11/6/19
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, 9/25/18, 11/27/18, 2/26/19,
4/10/19, 6/12/19, 8/28/19, 11/6/19
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
2:00 PM
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19
Also #14 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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19
Also #13 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#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20
Also #16 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
2:00 PM
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20
Also #15 EH
Docket 29
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By
2:00 PM
Cara J Hagan Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (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, 10/10/18, 2/27/19, 8/28/19, 11/6/19, 1/15/20
Also #18 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, 10/10/18, 2/27/19, 8/28/19, 11/6/19, 1/15/20
Also #17 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
11:00 AM
From: 9/5/19, 10/3/19, 10/17/19, 12/5/19, 1/30/20
Also #2 EH
Docket 48
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/19/19, 10/17/19, 12/5/19, 12/19/19, 1/30/20
Also #1 EH
Docket 53
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Movant(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 67
Debtor(s):
Amanda E Curry Represented By Andy C Warshaw
Joint Debtor(s):
Matthew L Curry Represented By Andy C Warshaw
Movant(s):
Amanda E Curry Represented By Andy C Warshaw Andy C Warshaw Andy C Warshaw
Matthew L Curry Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 74
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Movant(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 21
Debtor(s):
Teri Michelle Ford Represented By Gary S Saunders
Movant(s):
Teri Michelle Ford Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 EH
Docket 0
Debtor(s):
Teri Michelle Ford Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Sandraea La 'Jean Plummer Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ronald Smith Represented By Anerio V Altman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Federico Salas Represented By Todd L Turoci
Joint Debtor(s):
Susan Salas Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Gary L Allen Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Debra Suzanne Towne Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Carlos Javier Salvador Represented By Daniel King
Joint Debtor(s):
Lorena Gloribel Salvador Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
George Clarence Maret Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Maret Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Josephine Jaques Represented By Randolph R Ramirez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Robbie L Marshall Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Nery B. Mejia Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Scott A Baker Represented By
Paul Y Lee
Joint Debtor(s):
Leah D Baker Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jaqueline Aguilar-Ramos Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Silvia Alvarez Represented By
Benjamin A Yrungaray
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Elmy Martinez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Cynthia Lou Pate Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Denice Cecilia Splane Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Guadalupe Garcia Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Peggy Trang Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Juan Carlos De La Cruz Represented By Sanaz S Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Starla M Harris Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Augusto Mora Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Gwendolyn Smith Banks Represented By William Huestis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 142
Debtor(s):
Rick Gaeta Carreon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 144
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
Docket 61
Debtor(s):
David K Johnson Represented By Gary J Holt
Joint Debtor(s):
Janet L Johnson Represented By Gary J Holt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
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
11:01 AM
EH
Docket 64
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
11:01 AM
EH
Docket 59
Debtor(s):
Joe R Garcia Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
Debtor(s):
Victor Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
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
11:01 AM
Docket 37
Debtor(s):
Kevin Daily Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 61
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
Debtor(s):
Michael Anthony Delgado III Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 43
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 82
Debtor(s):
Heather Ann Pessoa Bond Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
Debtor(s):
Stephanie McCravey Cooper Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 22
Debtor(s):
Grace Gonzales Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
Also #2 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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
Also #1 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#: 6:16-01279 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, 11/27/18, 2/26/19, 4/10/19, 6/12/19,
8/28/19, 11/6/19, 2/12/20
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#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
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
2:00 PM
Jason Balitzer 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, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
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
2:00 PM
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
From: 7/10/18, 2/27/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
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 Mark S Horoupian
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#: 6:18-01138 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)
(AS TO REMAINING DEFENDANTS)
(Jeff Converse - dismissed 12/2/19)
(Provident Trust Group LLC - dismissed 12/17/19) (De Loeon & Washburn, P.C. - dismissed 1/8/20) (Thomas Washburn - dismissed 1/8/20)
(Hector De Leon - dismissed 1/8/20)
From: 8/29/18, 11/28/18, 1/9/19, 4/10/19, 11/6/19, 2/12/20
EH
Docket 1
NONE LISTED -
Debtor(s):
John E. Tackett Represented By
2:00 PM
Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
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
Rafael R Garcia-Salgado
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
(2) Approving Bidding Procedures Utilized and (3) Granting Related Relief From : 2/12/20
EH
Docket 21
On September 16, 2017, Laura Valles ("Debtor") filed a Chapter 7 voluntary petition. On Schedule A, Debtor lists a 50% interest (owned with her mother) in certain real property located at 13768 Ochre Ln., Victorville, CA 92394 (the "Property").
Schedule A identifies the value of the Property as $277,582. Schedule D listed a lien, apparently a second mortgage, against the Property in the amount of $51,649. That entry on Schedule D stated "only mother on 1st mortgage." Debtor did not claim an exemption in the Property. On January 3, 2018, Debtor received a discharge.
On January 13, 2020, Trustee filed the instant sale motion. Trustee proposes to sell the estate’s 50% interest in the Property to Joanne Lopez, Debtor’s mother, for $25,000.
The sale is not free and clear of liens. While the sale motion does not detail the liens against the Property, the Court notes that the preliminary title report attached as Exhibit 2 identifies three deeds of trusts totaling $228,873 – which would indicate that there is approximately $60,000 equity in the Property.
2:00 PM
The Court has not received any opposition to the Trustee’s sale motion.
A. Sale Motion
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 declaration of Trustee states that "[t]he purchase price and terms contained in the Real Estate Purchase and Sale Agreement were negotiated by the parties based upon the market value of the real property, the liens recorded against the property and costs of sale by a real estate broker and other related professional fees." Based upon the liens identified in the preliminary title, the Court’s knowledge of the customary fees and costs associated with the sale of real property, and assuming the relative accuracy of the valuation identified on Schedule, which is not contradicted by any evidence in the record, the Court can surmise that it would be unlikely that Trustee could obtain a materially higher distribution for the estate by attempting to sell the estate’s interest in the Property, or the entire Property, to a disinterested purchaser. Given this conclusion, and noting that the proposed sale would generate a meaningful distribution for unsecured creditors, the Court finds that Trustee has articulated a valid
2:00 PM
business justification for the sale of the Property.
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. Regarding the overbidding procedures, the Court has reviewed the proposed overbidding procedures and finds said procedures to be reasonable in the circumstances. Trustee to confirm that there are no overbids.
Regarding Trustee’s request for a good faith determination pursuant to § 363(m), the Court notes that Trustee has not provided a declaration of the buyer, and the buyer is the mother of Debtor. Given these facts, and noting that the Property was not marketed and Trustee has not made an independent attempt to determine the fair market value of the Property, the Court is not inclined to make a good faith finding.
The Court is inclined to GRANT the sale motion in its entirety with the exception of the request for a good faith determination pursuant to 11 U.S.C. § 363(m).
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Laura Valles Represented By
Dana Travis
Movant(s):
John P Pringle (TR) Represented By Charles W Daff
Trustee(s):
John P Pringle (TR) Represented By Charles W Daff
11:00 AM
Adv#: 6:19-01175 Gamboa v. Santillan
EH
Docket 1
NONE LISTED -
Debtor(s):
Isaac Santillan Represented By Jenny L Doling
Defendant(s):
Isaac Santillan Represented By Zachary D Schorr
Plaintiff(s):
Bernardo Gamboa Represented By Larry Fabrizi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
From: 5/23/19, 8/22/19, 10/17/19, 12/19/19
EH
Docket 1
NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
11:00 AM
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 105
NONE LISTED -
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Movant(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
Docket 100
NONE LISTED -
Debtor(s):
Viorel Bucur Represented By
Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/5/19, 10/3/19, 10/17/19, 12/5/19, 1/30/20, 2/13/20
Also #6 EH
Docket 48
NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 9/19/19, 10/17/19, 12/5/19, 12/19/19, 1/30/20, 2/13/20
Also #5 EH
Docket 53
NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Movant(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$1,648.00, Expenses: $15.00. (Anderson (TR), Karl) Also #8
EH
Docket 71
NONE LISTED -
Debtor(s):
Julio Melchor Menendez Represented By John F Brady
Movant(s):
Karl T Anderson (TR) Represented By Robert A Hessling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 79
NONE LISTED -
Debtor(s):
Julio Melchor Menendez Represented By John F Brady
Movant(s):
Robert A. Hessling, APC Represented By Robert A Hessling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
CASE DISMISSED 12/26/19
EH
Docket 15
On December 16, 2019, Sergio Valdez ("Debtor") filed a Chapter 13 voluntary petition. On December 26, 2019, the case was voluntarily dismissed.
On January 14, 2020, UST filed a motion for an order compelling attorney to file disclosure of compensation pursuant to 11 U.S.C. § 329.
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 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, Arlene Tokarz, 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 REQUIRED.
Debtor(s):
Sergio L Valdez Represented By Arlene M Tokarz
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 22
Service: Proper Opposition: None
The Court having reviewed the motion, good cause appearing, service appearing proper, and noting the lack of opposition, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h), the Court is inclined to GRANT the motion, avoiding the junior lien of HSBC Bank, USA 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):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Movant(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr.
11:00 AM
Jaime A Cuevas Jr.
Juana De Jesus Marin Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAROLE CHRISTINE BAILEY
EH
Docket 14
Service: Okay Opposition: None
The Court having reviewed the motion, and noting the lack of opposition, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h), finds that no statutory presumption arose that the case was filed in bad faith, and that Debtor has provided sufficient evidence to establish that the instant case was filed in good faith.
APPEARANCES REQUIRED.
Debtor(s):
Carole Christine Bailey Represented By Kevin Tang
Movant(s):
Carole Christine Bailey Represented By Kevin Tang
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JACKIE M ZAPATA
EH
Docket 11
Service: Improper Opposition: None
Regarding service, the Court notes that Judge Houle’s self-calendaring procedures for motions to continue the automatic stay require that secured creditors be served pursuant to FED. R. BANKR. P. Rule 7004, and Debtor did not comply this requirement. Furthermore, the Court notes that Debtor indicated that the motion was being heard on regular notice, but the motion was set on shortened notice.
Regarding the merits, the Court notes that pursuant to 11 U.S.C. § 362(c)(3)(C)(i)(III) (bb), Debtor must demonstrate that there has been "a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case" such that the case will be concluded "with a confirmed plan that will be fully performed." Here, after reviewing the contents of the motion, the Court cannot conclude that Debtor has provided evidence which would establish a substantial change in affairs such that it is more likely than not Debtor’s Chapter 13 case will be successful. For that reason, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jackie M Zapata Pro Se
Movant(s):
Jackie M Zapata Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 135
On November 21, 2014, Rula Nino ("Debtor") filed a Chapter 13 voluntary petition. On February 26, 2015, Debtor’s Chapter 13 plan was confirmed.
On January 9, 2020, Trustee filed its Notice of Final Cure Mortgage Payment. On January 29, 2020, Specialized Loan Servicing LLC ("Creditor") filed its response. Creditor’s response indicated that Debtor was $33,220.36 delinquent on postpetition payments.
On January 30, 2020, Trustee filed a motion for order denying discharge and dismissing case. On February 12, 2020, Debtor filed a late response. The response states that Debtor withdrew funds from a retirement account in an amount equal to the postpetition delinquency. Debtor also provides a copy of a cashier’s check in the amount of $33,220.36 addressed to Creditor.
Pursuant to Debtor’s response, it appears that Debtor has cured, or is ready and able to
11:00 AM
cure, the material default under the Chapter 13 plan raised by Trustee. For that reason, the Court is inclined to continue the hearing on the motion to confirm cure of the postpetition delinquency.
The Court is inclined to CONTINUE the motion for cure of the postpetition delinquency asserted by Creditor.
APPEARANCES REQUIRED.
Debtor(s):
Rula Nino Represented By
Devin Sawdayi
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/7/19, 12/19/19 Also #15 & #16
EH
Docket 52
NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/3/19, 11/7/19, 12/19/19 Also #14 & #16
EH
Docket 44
On April 15, 2019, Mark & Elizabeth Swartz ("Debtors") filed a Chapter 13 voluntary petition. On June 21, 2019, The Bank of New York Mellon f/k/a The Bank of New York as successor Indenture trustee to JPMorgan Chase Bank, National Association for CWHEQ Revolving Home Equity Loan Trust, Series 2006-F ("Creditor") filed a proof of claim for a secured claim in the amount of $157,959.06 ("Claim 5").
On July 10, 2019, Debtors filed an objection to Claim 5. Debtors argued that the information filed in support of Claim 5 is inadequate pursuant to the Federal Rules of Bankruptcy Procedure, and that, as a result, Creditor has failed to meet its burden of proof. At the hearing of August 22, 2019, the Court noted that there appeared to be an error on the proof of service which resulted in Creditor’s notice address being misstated. For that reason, the Court continued the matter for proper service.
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On August 30, 2019, Debtors filed a renewed objection to Claim 5. The Court notes that notice and service are now proper.
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
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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 because such claim is contingent or unmatured;
FED. R. BANKR. P. Rule 3001(c)(2) identifies certain required information that a claimant must attach to a proof of claim in order for the claim to be afforded prima facie validity. In particular, the Court notes that Rule 3001(c)(2)(A) and (C) provide requirements related to the itemization of non-principal amounts and escrow amounts, respectively.
The Court finds Debtors’ assertion that the supporting information is inadequate to be well-founded. The mortgage proof of claim attachment includes the following information. Part 2 identifies a principal balance of $98,982.98, interest due of
$55,486.25, and fees and costs of $3,489.83. Part 3 identifies a pre-petition arrears of
$87,692.60, of which $84,202.77 was principal and $3,489.83 was the aforementioned costs. And Part 4 asserts that the month payment includes $607.39 for principal and interest and $549.90 for escrow.
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The two figures which do not appear to be justified in the supporting documentation are the $55,486.25 in interest and the $549.90 monthly payment for escrow. The Court notes that the loan payment history spreadsheet provided by Creditor does not contain any itemization for interest or escrow, and, furthermore, the entire column relating to accrued interest balance and accrued escrow balance is zeroed out.
Because Creditor has failed to separate principal, interest, and escrow, as directed by FED. R. BANKR. P. Rule 3001(c)(2), and, noting that Debtors have declared that there is no escrow account relating to the second mortgage, the Court is unable to determine the validity or amount of the prepetition default identified in column G of the loan payment history. The Court has also not been provided with any itemization or calculation of the interest amount, alleged to be $55,486.25.
As a result, the Court is inclined to reduce Claim 5 to $102,472.81, representing the principal balance and fees and costs due in part 2 of the loan payment history, with a prepetition arrearage amount of $0.
APPEARANCES REQUIRED.
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
11:00 AM
Movant(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Elizabeth M Swartz Represented By Joseph A Weber Joseph A Weber Fritz J Firman Fritz J Firman
PYOD LLC Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/11/19, 8/22/19, 10/3/19, 11/7/19, 12/19/19
Also #14 & #15 EH
Docket 15
NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 12
NONE LISTED -
Debtor(s):
Elizabeth Rodriguez Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 18
NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Cheryl Denise Luthie Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 7
NONE LISTED -
Debtor(s):
Gregory A. Shipman Represented By Douglas A Plazak
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Doralene Conception Weitz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Brian Fulk Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Andy M Manning Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 21
NONE LISTED -
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Robert Ibay Orina Represented By Nicholas W Gebelt
Joint Debtor(s):
Emmyruth Amizola Orina Represented By Nicholas W Gebelt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jose E. Toledo Godines Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 7
NONE LISTED -
Debtor(s):
Darryl R. Brown Represented By
M. Wayne Tucker
Joint Debtor(s):
Kimberly J. Brown Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 12
NONE LISTED -
Debtor(s):
James Olin Gardner Represented By Marcus Gomez
Joint Debtor(s):
Karen Rose Gardner Represented By Marcus Gomez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Gino Camilleri Represented By Terrence Fantauzzi
Joint Debtor(s):
Kristen Camilleri Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Early Earl Nelms Sr. Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 14
NONE LISTED -
Debtor(s):
Domingo Ramirez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Rocio Ramirez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Larry W. Smith Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Michael Arthur Eidsvoog Represented By Todd L Turoci
Joint Debtor(s):
Kathryn Michelle Eidsvoog Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Saundra Wyngate Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Memory Nicole Thompson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Anne M Sholtz Represented By
Robert K McKernan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Nga Nguyet Nguyen Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 6
NONE LISTED -
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 3
NONE LISTED -
Debtor(s):
Wayne Morris Represented By Michael A Cisneros
Joint Debtor(s):
Celia Morris Represented By
Michael A Cisneros
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Jose G.S. Balderas Represented By Gary S Saunders
Joint Debtor(s):
Karel Lee Balderas Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 5
NONE LISTED -
Debtor(s):
Kathryn Joanne Deangelis Represented By Kaveh Ardalan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Tanisha Tene Dennis Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Nicholas Rodriguez Represented By Heather J Canning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 13
NONE LISTED -
Debtor(s):
Rodrigo Humberto Juarez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Rachell E Stirrat Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 5
NONE LISTED -
Debtor(s):
John Anthony Percell Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Anthony Michael Santana Represented By Ruben Fuentes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Jeremiah Schermerhorn Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 5
NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
NONE LISTED -
Debtor(s):
Rosemary Garcia Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 152
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
11:01 AM
Docket 207
NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
NONE LISTED -
Debtor(s):
Juanita Francis Casey Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 75
NONE LISTED -
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 92
NONE LISTED -
Debtor(s):
Joseph N Duguay II Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
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 37
NONE LISTED -
Debtor(s):
Joseph Antonio Alvarado Jr. Represented By Steven A Alpert
Joint Debtor(s):
Rachel Alvarado Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
NONE LISTED -
Debtor(s):
Jorge Ramirez Represented By Christopher J Langley
Joint Debtor(s):
Evelia Ramirez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
NONE LISTED -
Debtor(s):
David Martin Hackworth Represented By Edward G Topolski
Joint Debtor(s):
Isabel Meru Hackworth Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
NONE LISTED -
Debtor(s):
Genaro Flores Represented By Todd L Turoci
Joint Debtor(s):
Salome Flores Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
NONE LISTED -
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
NONE LISTED -
Debtor(s):
Jorge Luis Ibarra Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 23
NONE LISTED -
Debtor(s):
Harinder Heera Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 2/5/20 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
1:00 PM
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
11:00 AM
MOVANT: MARIA T. ACOSTA
EH
Docket 6
Service: Proper Opposition: None
As a preliminary matter, the Court notes that Debtor has had two cases dismissed in the previous year, triggering application of 11 U.S.C. § 362(c)(4). As a result, Debtor’s request is properly construed as a request to impose the automatic stay, rather than continue the automatic stay.
Nevertheless, the Court having reviewed the motion, notice appearing proper and no opposition having been filed, and Debtor having provided sufficient evidence to rebut the statutory presumption of § 362(c)(4)(D)(i)(I) that the case was not filed in good faith, the Court is inclined to IMPOSE the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Maria T. Acosta Represented By Maria C Hehr
Movant(s):
Maria T. Acosta Represented By
11:00 AM
Trustee(s):
Maria C Hehr Maria C Hehr
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CC CIMARRON LP
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Candra Breann Rodriguez Pro Se
Movant(s):
CC CIMARRON LP Represented By Scott Andrews
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: LYNDON RAY QUISENBERRY
EH
Docket 13
Service: Proper Opposition: None
The Court having reviewed the motion, notice appearing proper and no opposition having been filed, the Court is inclined to find that Debtor has demonstrated a sufficient change in personal circumstances for the Court to conclude that the bad faith presumption of § 362(c)(3)(C)(i)(III) does not arise in this case, and, as a result, the Court is inclined to 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):
Lyndon Ray Quisenberry Represented By Paul Y Lee
Movant(s):
Lyndon Ray Quisenberry Represented By Paul Y Lee
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES
EH
Docket 9
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. The Court is inclined to DENY the request for relief from stay under § 362(d)(2) for lack of cause shown. The Court notes that the motion fails to check the box on page 4 which specifies grounds for relief under
§ 362(d)(2) and, furthermore, Movant’s assertion of the fair market value of the collateral refers to an Exhibit 5 that does not appear to exist.
APPEARANCES REQUIRED.
Debtor(s):
Steven Anthony Alvarez Represented By Christopher Hewitt
Movant(s):
Consumer Portfolio Services Represented By
Kristin A Zilberstein
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 16
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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):
Manuel Lopez Jr. Represented By Susan Jill Wolf
Joint Debtor(s):
Amanda Loustauna Represented By Susan Jill Wolf
Movant(s):
Honda Lease Trust Represented By
11:00 AM
Trustee(s):
Vincent V Frounjian
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: MAGNUM PROPERTY INVESTMENTS, LLC
CASE DISMISSED 1/28/20
EH
Docket 7
Service is Proper Opposition: None
Movant requests relief from stay pursuant to 11 U.S.C. § 362(d)(4) based on four summarily-dismissed bankruptcies affecting the property since June 2016 and an unrecorded transfer of a 5% interest in the subject property the day before the petition date. Movant, however, did not seek such relief on the request for relief page, and, therefore, the Court is not inclined to address the request. The Court is inclined to GRANT relief from Rule 4001(a)(3) stay.
Regarding Movant’s request to annul the automatic stay to validate the foreclosure sale held three days after the petition date, the Bankruptcy Appellate Panel, 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."). More recently, the Bankruptcy Appellate Panel stated the following regarding the standard for annulment of the automatic stay:
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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 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); see also In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1055 (9th Cir. 1997) ("Many courts have focused on two factors in determining whether cause exists to grant relief from the stay: (1) whether the creditor was aware of the
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bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor.").
Fjeldsted cautioned that the enumerated factors are not a scorecard, but the Fjeldsted standard clearly weigh in favor of annulling the stay here. Specifically, as is noted by Creditor, this is at least the fourth filing affecting the subject real property since June 2016, and all four cases were summarily dismissed, indicating an intention to delay and hinder creditors. Additionally, the Court notes that Debtor filed a skeletal petition which was subsequently dismissed for failure to comply with the Bankruptcy Code, indicating that this filing was likely not in good faith. Furthermore, the fact that Debtor received a 5% interest in the subject real property through an unrecorded grant deed purportedly executed the day before the petition date suggests that Debtor may not have a valid interest in the subject real property. Finally, the Court notes that Movant quickly filed the instant motion the day after the foreclosure sale was held.
Additionally, the Court notes that Movant has served the instant motion on the original borrower, who has not filed any opposition, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
As noted above, the instant bankruptcy case was dismissed on January 28, 2020. Therefore, the Court is inclined to DENY the remaining requests for relief as moot.
APPEARANCES REQUIRED.
Debtor(s):
Omar A Guzman Pro Se
Movant(s):
Magnum Property Investments, LLC Represented By
Harris L Cohen
Strategic Acquisitions, Inc. Represented By Harris L Cohen
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
Docket 17
Service: Proper Opposition: None
11 U.S.C. § 362(h)(1) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
11:00 AM
applicable; and
to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
(emphasis added). Here, Debtor’s statement of intention fails to address the subject collateral. Therefore, the automatic stay has terminated pursuant to § 362(h)(1)(A). Accordingly, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Adena Marie Tello Represented By Nathan Fransen
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK
CASE DISMISSED 1/21/20
EH
Docket 16
NONE LISTED -
Debtor(s):
Peggy Trang Pro Se
Movant(s):
Wells Fargo Bank, National Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
From: 1/14/20 EH
Docket 6
Service: Proper—shortened notice Opposition: None
The Court has reviewed the motion, and the service was rendered on shortened notice. Debtor had two Chapter 13 voluntary petitions, case number 16:19-bk-16791-MH ("Prior First Case") and case number 19-bk-12704-MH ("Prior Second Case"), pending within one year. Pursuant to 11 U.S.C. § 362(c)(4)(D)(i), a case is presumed to be filed not in good faith as to all creditors if "2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period…"
A debtor can rebuttal this presumption by clear and convincing evidence. 3 Collier on Bankruptcy ¶ 362.06 (Richard Levin & Henry J. Sommer eds., 16th ed.). "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006)
11:00 AM
(citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor declared that the reason why the Prior Second Case was dismissed because he "believed he was going to begin working in a position which would enable him to stay current on both his…payments." Dkt No. 7, Pg 3. After the Prior Second Case was filed, the position was no longer available to Debtor. Thus, Debtor did not appear to the Prior Second Case’s 341(a) meeting because he was unable to make the required payment at the meeting.
Debtor stated that the Prior First Case was dismissed because, even though he had a job, he was not earning enough to make his post-petition mortgage payments. Id. at 4. Now, Debtor has a second job, and "anticipates receiving a job offer…for a higher paying position which will enable him to stay current on his position. Id.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor did not provide evidence more than mere statements. He neither provided paystubs of his current employment nor provided detailed and competent evidence to believe he would receive a job offer for a higher paying position.
By his own statements, Debtor’s beliefs have been consistently wrong and have led him to his prior cases being dismissed. Debtor also speculates that he will receive a higher paying job, which is insufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(4) that the case was filed in good faith regarding Debtor being able to post-petition mortgage HOA payments, and future Chapter 13 plan payments. Thus, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
11:00 AM
Movant(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: KINECTA FEDERAL CREDIT UNION
EH
Docket 14
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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):
Richard A Drake Represented By Julie J Villalobos
Movant(s):
KINECTA FEDERAL CREDIT Represented By Arnold L Graff
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 34
Service: Proper Opposition: None
Movant’s only proffered grounds for relief from the automatic stay is lack of adequate protection due to the absence of an adequate equity cushion. The Court notes, however, that there is an equity cushion of 16%, or $52,391.69, roughly equivalent to nearly two years of monthly mortgage payments. This is because in an equity cushion analysis, costs of sale are not included. See, e.g., In re Mellor, 734 F.2d 1396, 1400
n.2 (9th Cir. 1984) ("’Equity cushion’ has been defined as the value in the property, above the amount owed to the creditor."). Additionally, the Court notes that Movant has not identified any other reason why their interest is not adequately protected, and the motion does not indicate that there is any outstanding delinquency. Based upon these facts, Movant has failed to demonstrate that its interest is not adequately protected. See, e.g., id. 734 F.2d 1396, 1401 (9th Cir. 1984) (citing In re McGowan, 6
B.R. 241, 243 (Bankr. E.D. Pa. 1980) (10% cushion is sufficient) and In re Breuer, 4
B.R. 499, 501 (Bankr. S.D.N.Y. 1980 ($21,000 is sufficient)).
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jose Antonio Mele Represented By Chris A Mullen
Joint Debtor(s):
Victoria Isabel Mele Represented By Chris A Mullen
Movant(s):
Wilmington Savings Fund Society Represented By
Kristin A Zilberstein
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
FORD MOTOR CREDIT COMPANY LLC
EH
Docket 22
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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):
Raymundo Avalos Sanchez Represented By Robert L Firth
Joint Debtor(s):
Gema Avalos Represented By Robert L Firth
Movant(s):
Ford Motor Credit Company LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 27
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Margarito Horta Represented By
James D. Hornbuckle
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 29
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtors had a previous case dismissed on April 25, 2019. Debtors not having filed a motion to continue the automatic stay, the automatic stay in the instant case expired on September 22, 2019.
Therefore, the automatic stay having terminated as a matter of law, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
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
Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
EH
Docket 26
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous case dismissed on January 10, 2019. Debtors not having filed a motion to continue the automatic stay, the automatic stay in the instant case expired on July 31, 2019. Therefore, the automatic stay having terminated as a matter of law, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Joe Medina Represented By
Julie J Villalobos
Movant(s):
Wilmington Trust, National Represented By Robert P Zahradka Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
Docket 32
NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Movant(s):
Lakeview Loan Servicing, LLC, and Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 29
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtors had a previous case dismissed on April 25, 2019. Debtors not having filed a motion to continue the automatic stay, the automatic stay in the instant case expired on September 22, 2019.
Therefore, the automatic stay having terminated as a matter of law, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Michael Colbus Represented By Andrew Nguyen
Joint Debtor(s):
Lisa Colbus Represented By
Andrew Nguyen
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FLAGSTAR BANK, FSB
From: 1/28/20 EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. DENY alternative request for adequate protection 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):
Rhonda Jan Kennedy Represented By Todd L Turoci
Movant(s):
Flagstar Bank, FSB Represented By Mark S Krause
Erin M McCartney
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 49
NONE LISTED -
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES, LLC
From: 2/11/20 EH
Docket 27
Service: Proper Opposition: Late
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Nagazaki Lung Represented By Nathan Fransen
Joint Debtor(s):
Veronica Lung Represented By Nathan Fransen
Movant(s):
Carrington Mortgage Services, LLC Represented By
Anna Landa
11:00 AM
Trustee(s):
Diana Torres-Brito
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST
EH
Docket 29
NONE LISTED -
Debtor(s):
Ann Frances Perez Represented By
Rabin J Pournazarian
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Riverside, California 92509
MOVANT: THE BANK OF NEW YORK MELLON
From: 1/28/20, 2/4/20 EH
Docket 60
Service is Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
The Bank of New York Mellon, et al Represented By
Anna Landa
11:00 AM
Trustee(s):
Bonni S Mantovani Christopher Giacinto
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HYUNDAI LEASE TITLING TRUST
EH
Docket 32
Service: Proper Opposition: None
11 U.S.C. § 362(h)(1) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
11:00 AM
applicable; and
to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
(emphasis added). Here, Debtor’s statement of intention fails to address the subject vehicle. Therefore, the automatic stay has terminated pursuant to § 362(h)(1)(A). Accordingly, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Jun Ho Choi Represented By
Michael H Yi
Movant(s):
Hyundai Lease Titling Trust Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Represented By Nancy H Zamora
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 38
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous case dismissed on May 9, 2018. Debtors not having filed a motion to continue the automatic stay, the automatic stay in the instant case expired on October 27, 2018. Therefore, the automatic stay having terminated as a matter of law, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HOUY LIM
EH
Docket 248
Service: Improper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous case dismissed on July 19, 2018. While Debtor did seek, and obtain, a continuation of the automatic stay, the Court’s order did not indefinitely continue the automatic stay. Pursuant to the Court’s order entered February 5, 2019, as docket number 106, the automatic stay in the instant case expired on April 5, 2019 Therefore, the automatic stay having terminated as a matter of law, the
11:00 AM
Court is inclined to CONFIRM that the automatic stay is no longer in effect, and otherwise DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Todd L Turoci
Movant(s):
Houy Lim Represented By
Luke P Daniels
Trustee(s):
Steven M Speier (TR) Represented By Rika Kido
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 24
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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):
Ridley R. Molders Represented By Christopher J Langley
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 57
- NONE LISTED -
Debtor(s):
Ignacio Salvador Aguilar Represented By Summer M Shaw
Joint Debtor(s):
Cynthia Araujo Aguilar Represented By Summer M Shaw
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE MORENO VALLEY RANCH COMMUNITY ASSOCIATION
EH
Docket 46
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). 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):
Candyce Flemister Represented By Christopher Hewitt
Movant(s):
The Moreno Valley Ranch Represented By Erin A Maloney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NAVY FEDERAL CREDIT UNION
EH
Docket 78
Service: Proper Opposition: Yes
Based upon the contents of Movant’s reply, which indicate that Debtors do not have the financial means to enter into an adequate protection agreement containing standard terms, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d) (1). GRANT relief from § 1301(a) co-debtor stay. GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY request under ¶ 12 because the continuation page does not appear to request any relief.
APPEARANCES REQUIRED.
Debtor(s):
Peter Hiroshi Kiyasu Represented By Steven A Alpert
Joint Debtor(s):
Jennifer Ann Kiyasu Represented By Steven A Alpert
11:00 AM
Movant(s):
Navy Federal Credit Union Represented By
Diana Torres-Brito
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 74
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief from stay pursuant to 11 U.S.C. § 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):
Jerome Petras Oakman Represented By Dana Travis
Joint Debtor(s):
Angella Jean Oakman Represented By Dana Travis
11:00 AM
Movant(s):
BMW Bank of North America Represented By Dipika Parmar Cheryl A Skigin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, NATIONAL ASSOCIATION
EH
Docket 193
- NONE LISTED -
Debtor(s):
Rigoberto Baez Represented By Michael Smith Sundee M Teeple
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 12/3/19 Also #33 - #37
EH
Docket 199
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20 Also #32 - #37
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20 Also #32 - #37
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20 Also #32 - #37
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20 Also #32 - #37
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20 Also #32 - #36
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Pro Se
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
Also #40 EH
Docket 179
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18, 8/21/18, 10/23/18, 11/27/18, 2/5/19, 5/7/19, 7/30/19, 10/8/19, 10/29/19, 1/14/20
Also #39 EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
1:00 PM
EH
Docket 36
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
11:00 AM
MOVANT: WESCOM CREDIT UNION
EH
Docket 42
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief from stay pursuant to 11 U.S.C. § 362(d)(2) for lack of cause shown. Specifically, it is not clear that the subject collateral is not necessary for an effective reorganization. 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):
Adrio Soedarmo Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Yolanda Soedarmo Represented By
Ethan Kiwhan Chin
11:00 AM
Movant(s):
Wescom Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 1/7/20, 2/4/20 EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
EH
Docket 54
Service: Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Xavier C. Luna Represented By Christopher J Langley
Movant(s):
JPMorgan Chase Bank, National Represented By
Nancy L Lee Merdaud Jafarnia
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 31
NONE LISTED -
Debtor(s):
June A. Bitanga Represented By Gregory Ashcraft
Joint Debtor(s):
Maria Teresita A Bitanga Represented By Gregory Ashcraft
Movant(s):
Freedom Mortgage Corporation Represented By
Michelle Hart Ippoliti Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
Docket 22
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 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):
Humberto Alvarez Jr. Represented By Daniel King
Movant(s):
Exeter Finance, LLC Represented By Cheryl A Skigin
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC D/B/A/ MR COOPER
EH
Docket 62
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Judy May Wells Represented By David L Nelson
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROUNDPOINT MORTGAGE SERVICING CORPORATION
EH
Docket 29
NONE LISTED -
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Movant(s):
RoundPoint Mortgage Servicing Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 19
Service: Proper Opposition: Yes
Debtor’s opposition indicates that postpetition arrears listed by Movant are incorrect because Debtor has made postpetition plan payments directly to the Chapter 13 Trustee. Nevertheless, it appears that the second payment made by Debtor was only a partial payment. Parties to apprise the Court of the status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Movant(s):
Deutsche Bank National Trust Represented By Angie M Marth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 12
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
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applicable; and
to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
(emphasis added). Here, Debtor’s statement of intention indicates that he will surrender the property. Pursuant to 11 U.S.C. § 521(a)(2)(B), the time to perform the intention indicated in the statement of intention is within thirty days of the date of the first meeting of creditors; in this case, that deadline was February 13, 2020. Therefore, either the automatic stay has terminated pursuant to § 362(h)(1)(B), due to Debtor’s failure to timely perform the action specified in the statement of intention, or the automatic stay has terminated due to § 362(c)(1), due to the subject property being surrendered and being no longer property of the estate. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Francisco Javier Deleon Represented By Steven A Alpert
Joint Debtor(s):
Alexis Mariah Deleon Represented By Steven A Alpert
Movant(s):
BMW Bank of North America Represented By Cheryl A Skigin
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: STATEWIDE PROPERTY SERVICES, INC.; TRINCY THOMAS
EH
Docket 8
Service is Improper Opposition: None
For motions for relief from stay set on shortened notice, Judge Houle’s self- calendaring procedures require that telephonic notice of the hearing be provided to all parties entitled to receive notice of the motion. Local Rule 4001-1(c)(1)(A) requires that the debtor be provided notice of motions for relief from stay relating to residential unlawful detainer actions. Therefore, Movant was obligated to provide telephonic notice of the hearing to Debtors. The declaration of telephonic notice submitted by Movant indicates that it did not provide telephonic notice of the hearing to Debtors.
The Court is inclined to CONTINUE the matter to March 10, 2020 at 11:00 a.m. for telephonic notice of the hearing to be provided to Debtors.
APPEARANCES REQUIRED.
Debtor(s):
Ricardo Diaz Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Tatiana Lopez Represented By
11:00 AM
Movant(s):
Jaime A Cuevas Jr.
Statewide Property Services, INC.; Represented By
Barry L O'Connor
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: HP CALIFORNIA I LLC
Also #12 EH
Docket 29
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
GRANT request to annul the automatic stay.
Regarding Movant’s request to annul the automatic stay, the Bankruptcy Appellate Panel, 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."). More recently, the Bankruptcy Appellate Panel stated the following regarding the standard for annulment of the automatic stay:
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
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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 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); see also In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1055 (9th Cir. 1997) ("Many courts have focused on two factors in determining whether cause exists to grant relief from the stay: (1) whether the creditor was aware of the bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor.").
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Fjeldsted cautioned that the enumerated factors are not a scorecard, but the standards articulated above weigh in favor of annulling the stay here. Specifically, the only action taken by Movant in violation of the automatic stay appears to have been propounding discovery three days after the instant bankruptcy case was filed. Given that Movant was not listed in the petition filed on January 26, 2020, it would appear that Movant was not aware of the automatic stay when that discovery was propounded. Furthermore, it does not appear that annulling the automatic stay would cause any injury to Debtor and restoring the parties to the status quo ante is rather simple in this situation.
APPEARANCES REQUIRED.
Debtor(s):
Saverio Sam Lanni Represented By Kevin C Ronk
Movant(s):
HP California I LLC Represented By Scott Andrews
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: WILLIAM AND NORMA ZIESE FAMILY TRUST
Also #11 EH
Docket 23
Service: Proper Opposition: Yes
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT waiver of Rule 4001(a)(3) stay. GRANT request under ¶ 2. The Court is inclined to DENY the request under ¶ 3 because the motion does not state any legal grounds to support the contention that the automatic stay is not in effect. The Court is inclined to DENY the requests under ¶¶ 7, 9, 10, and 11 because, as noted by Debtor, Movant has not provided any evidence to indicate that Debtor is acting in bad faith or is otherwise making improper use of the Bankruptcy Code. The Court is inclined to DENY the alternative request under ¶ 12 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Saverio Sam Lanni Represented By Kevin C Ronk
11:00 AM
Movant(s):
William and Norma Ziese Family Represented By
James M Blucker
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #2 EH
Docket 11
NONE LISTED -
Debtor(s):
Hannan Salem Pro Se
Joint Debtor(s):
Hector Garibay Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #1 EH
Docket 9
NONE LISTED -
Debtor(s):
Hannan Salem Pro Se
Joint Debtor(s):
Hector Garibay Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 8
NONE LISTED -
Debtor(s):
Jose Manuel Garcia Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
EH
Docket 12
NONE LISTED -
Debtor(s):
Jeffrey Thomas Shreve Represented By Daniel King
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 13
NONE LISTED -
Debtor(s):
David Pedro McNally Represented By George P Hobson Jr
Joint Debtor(s):
Maria Guadalupe Diaz Represented By George P Hobson Jr
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 28
3/4/20
Opposition: None Service: 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: $1,369.14
Trustee Expenses: $46.56
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):
Derrick Leron Richardson Represented By Jeffrey N Wishman
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 29
3/4/20
Opposition: None Service: 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: $1,006.33
Trustee Expenses: $91.30
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):
Shannon Kristine Koivisto Represented By Brian J Soo-Hoo
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 59
3/4/20
Opposition: None Service: Proper
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1, and compensation for Auctioneer was approved per order entered on May 7, 2019. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: | $2,150.00 |
Trustee Expenses: | $336.60 |
Auctioneer Fees: | $3,500.00 |
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):
Gilberto Rodriguez Represented By
Patricia M Ashcraft - SUSPENDED BK -
Joint Debtor(s):
Grace Rodriguez Represented By
Patricia M Ashcraft - SUSPENDED BK -
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 24
3/4/20
Opposition: None Service: 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: $670.18
Trustee Expenses: $59.87
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 Radillo-Mendoza Represented By William Radcliffe
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 56
BACKGROUND
On September 26, 2011 ("Petition Date"), Maximino Romero Torres (hereinafter "Debtor") and Rebecca Anne Torres (hereinafter "Joint Debtor") (together hereinafter "Debtors") filed for Chapter 7 voluntary petition.
In their commencement documents, Debtors listed their residence at 5975 Merced Road, Oak Hills, California 92344 (hereinafter the "Property"). The value of the Property was listed at $60,500.00, and the amount the Debtors’ homestead exemption, under Cal. Code Civ. Proc. §430(b)(1), in the Property was $42,303.71, the same amount as the secured claim on the Property owed by Chase Home Finance (hereinafter "Chase").
On March 21, 2011, Debtors amended their Schedule B and Schedule C. Dkt.
Nos. 17 and 18. However, Debtors left the Property’s value and exemption amount unchanged. Id. On May 19, 2011, Debtors received a discharge. The case was subsequently closed on May 23, 2011.
On February 15, 2019, Debtors filed a motion to reopen their case to avoid a lien against their Property (hereinafter "First Motion to Reopen"). Dkt. No. 25.
Debtors, in their First Motion to Reopen, stated that they were unaware of an abstract lien judgment placed on the Property on September 21, 2009, filed by Ford Motor Credit Company, LLC (hereinafter "FMC") and entered by Superior Court of California, County of San Bernardino.
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Debtors’ counsel became aware of the lien because the judgment was renewed on May 15, 2018. The renewed judgment amount accrued to $15,648.23 because of interest after judgment, credit after judgment, and fee for filing renewal application.
On March 19, 2019, after reviewing the motion and good cause appearing, the Court granted the motion to reopen Debtors’ case for a period of sixty days. Dkt. No.
The motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) was subsequently filed by Debtors on March 29, 2019 (hereinafter "First Motion to Avoid Lien"). Dkt. No. 28.
However, the motion was denied on April 26, 2019. Dkt. No. 30. The Court reasoned that Debtors provided insufficient evidence of the exempt status and the fair market value of the Property: the Debtors erroneously used the same exempt value as the secured claim value, and did not provide evidence of the fair market value of the Property. Id. On May 30, 2019, Debtors filed a second motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522 (f) (hereinafter the "Second Motion to Avoid Lien"). Dkt. No. 32. Even though the sixty-day period had expired on May 18, 2019, the Court still heard the motion and placed it on its calendar for hearing on July 31, 2019. Dkt. No. 35.
On July 31, 2019, the Court heard the matter. Yet, again, the Court denied the motion without prejudice because of a list of errors:
On page 2, paragraph 5 of the motion, Debtors placed the wrong exempted amount.
on page 2, paragraph 9 of the motion, Debtors allege that the fair market value of the property was $60,500; however, they provided an appraisal claiming the fair market value of the property was $49,000;
on page 2, paragraph 10 of the motion, Debtor failed to include Chase’s lien on the property, alleged to be in the amount of $42,303.71; etc.
On September 5, 2019, Debtors filed a third motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) (hereinafter "Third Motion to Avoid Lien"). Dkt. No. 40. Yet again, on October 9, 2019, because of a list of errors and insufficient evidence that were listed above but never rectified, the Court denied the motion and closed the case.
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On November 5, 2019, Debtors filed a second motion to reopen the case to avoid a lien (hereinafter "Second Motion to Reopen"). After reviewing the case and good cause appearing, the Court granted the Second Motion to Reopen for a period of sixty days. Dkt. No. 54. The Debtors subsequently filed a fourth motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) (hereinafter "Fourth Motion to Avoid Lien"). Dkt. No. 56.
DISCUSSION
I. Exemptions
11 U.S.C §522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing the exemption stated in that subsection. 11 U.S.C. §522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C §522(d) can limit their residence to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series, at the time the earliest lien in the series of overlapping liens was created.
In Debtors’ declaration in support of the motion, it states that Chase incurred a secured claim on August of 1990. However, like the other motions to avoid the FMC’s abstract judgment lien, this motion does not have any evidence of Chase’s lien. The lack of this evidence significantly prevents the Court to determine if FMC’s lien can actually be voided under 11 U.S.C. §522(f).
Without evidence of Chase’s lien or its value, it quite difficult to determine the
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homestead exemption amount. The Debtors are allowed an exemption of their aggregate interest in the real property that the debtors use as a residence up to the value of the exemption. When Debtors’ homestead is subjected to a valid mortgage, which the Debtors allege the Chase lien is, the exemption is applied to the unencumbered interest of the first mortgage.
Furthermore, California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal. Code of Civ. Proc. § 703.140, including an homestead exemption of $24,060, or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. § 704.730, which provides three different amounts—$75,000, $100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In their Memorandum of Points and Declaration of James A. Alderson in their Fourth Motion to Avoid the Lien, Debtors allege to exempt the Property under Cal.
Code of Civ. Proc. §403(b)(1). Cal. Code of Civ. Proc. §403(b)(1), has nothing to do with homestead exemptions. This provision pertains to reclassification of civil actions and proceedings. However, on page 2, on Paragraph 5, Debtors claim an exemption in the amount of $18,196.29 under Cal. Code of Civ. Proc. §703(b)(1). This pertains to the correct section, exemptions, but it does not enlighten the court to what homestead exemption the Debtors elect.
Nonetheless, under either of exemptions the Debtors can elect, the property would be encumbered if there was evidence of Chase’s lien existing and the value of that lien being what the Debtors allege. Yet again, the Court has no choice but to deny the motion after the Debtors fail to provide evidence that the Court has repeatedly asked for. In other words, without proof of a senior lien, there is sufficient equity in the residence to satisfy both the claimed exemption and the Ford judgment, and thus the lien does not impair the exemption.
Opposition: None Service: Proper
As set forth above, the Court DENIES this motion with prejudice. After repeatedly allowing the Debtors multiple bites at the proverbially apple and stating the
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type of evidence needed to determine whether the motion should be granted, the Court hereby orders that the case be closed.
APPEARANCES REQUIRED.
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Movant(s):
Maximino Romero Torres Represented By James A Alderson
Rebecca Anne Torres Represented By James A Alderson James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
11:00 AM
Docket 0
3/4/20
BACKGROUND
On August 9, 2011 ("Petition Date"), Arturo Middle Ramirez (hereinafter "Debtor") and Martha Ramirez (hereinafter "Joint Debtor") (collectively hereinafter "Debtors") filed for Chapter 7 voluntary petition.
In their commencement document, Debtors stated that they resided at 10043 Poulsen Avenue, Montclair, California 91763 (hereinafter the "Property"). The Property was valued at $240,000, and it was held as collateral for two claims totaling
$400,894.00—$300,754.00 was secured by the claim owed by Bank of America (hereinafter "BOA") and $100,140.00 was secured by the claim owed by Beneficial Financial Inc. (hereinafter "Beneficial").
After their petition was closed because the Debtor failed to file a financial management course certificate and then reopened, Debtors were able to fulfill all the requirements to receive a discharge on February 15, 2012. Debtors’ case was subsequently closed on February 27, 2012.
On January 5, 2020, Debtors filed a motion to reopen their case in order to file a motion to avoid a judgement lien recorded by National Commercial Recovery, Inc. (hereinafter "National"). Dkt. No. 27. Debtors claim they were unaware of the lien, which was filed on August 9, 2011, until the creditor had threatened to enforce its lien, prompting them to commence a title search. After reviewing the motion, the Court granted it, opening Debtors’ case for thirty days to file a motion to avoid the judgment lien.
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Debtors then proceeded to file amended Schedule C and Schedule D on January 17, 2020. Dkt. Nos. 30 and 31. The amended documents changed the value of the Property to $250,000.00, from $240,000.00, and the amount of the homestead exemption to $20,000, from nothing, under Cal Code Civ. Proc. §703.140(b)(5). Id.
BOA’s claim was reduced to $259,354.88, from $300,754.00, and was bifurcated— secured amount of $250,000 and unsecured amount of $9,354.88. Beneficial’s claim remained the same amount, but it was reclassified as unsecured because BOA’s claim, having priority, impaired it.
On January 17, 2020, Debtors filed a motion to avoid the judicial lien recorded by National. Dkt. No. 32. A hearing date was set for March 4, 2020.
DISCUSSION
Exemptions
11 U.S.C § 522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing the exemption stated in that subsection. 11 U.S.C. § 522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C § 522(d) can limit their residence to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series of overlapping liens, at the time the earliest lien in the series of overlapping liens was created.
In this case, the first-lien holder, BOA, recorded its lien on September 10, 2004, the second-lien holder, Beneficial, recorded its lien on September 13, 2006, and
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National recorded its lien on November 10, 2010. Thus, as a series of overlapping liens, the date of the first lien recorded, September 10, 2004, is the determining date of the amount and exemption statute applicable.
Operative since July 1, 1983, California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal.
Code of Civ. Proc. §703.140(b)(5), also known as the "wildcard exemption," or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. §703.730, which provides three different amounts—$75,000,
$100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In this case, Debtors elected the "wildcard exemption." The Debtors are allowed an exemption up to $24,060.00 of their aggregate interest in the Property.
The Court may not refuse to honor the exemption absent a valid statutory basis for doing so. Law v. Siegel 134 S. Ct. 1188 (2014) (stating a valid statutory basis would be for 11 U.S.C §§§ 522(c), 522(o), 522(q)). It appears that the Court has no statutory basis to refuse the exemption.
Furthermore, Pursuant to Federal Rule of Bankruptcy Procedure Rule 4003(b) (3), if an exemption is first claimed after a case is reopened, an objection to the exemption must be filed before the reopened case is closed. 4 Collier on Bankruptcy ¶ 522.05[2][a] (Richard Levin & Henry J. Sommer eds., 16 ed.); see also Taylor v.
Freeland & Kronz, 503 U.S. 638 (1992) (stating that "unless a party in interest objects, the property claimed as exempt…is exempt.")
Valuation of the Property
In 11 U.S.C. § 522(a)(2), "‘value’ is defined as ‘fair market value’ as of the date of the filing of the petition’ unless the property does not enter the estate until after the petition has been filed, in which case the value is determined ‘as of the date such property become property of the estate." 4 Collier on Bankruptcy ¶ 522.03[2] (Richard Levin & Henry J. Sommer eds., 16 ed.). See also Bfp v. Resolution Trust Corp., 511 U.S. 531, 537 (1994).
The Debtor provided a fair market valuation using the cost approach. Dkt. No.
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32-10. Courts have not come to a widely decided valuation to be used under 11 U.S.C.
§ 522. Furthermore, "the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property." In re Todd, 194 B.R. 892 (Bankr. MT. 1996) (assessing a value of a home under 11 U.S.C. § 522(a)(2)).
The Debtors are using the Property to reside in. In valuation of residential property, however, "Courts routinely reject the cost approach, holding ‘[b]ecause the cost approach rarely provides an accurate reading of the fair market value of real estate, appraisals routinely disregard it or mention it only in passing, and concentrate their efforts on sales comparison and income approaches and then adjust for differences between the two.’…[T]he cost approach is inappropriate…[because] the idea of a Debtor going out and building a similar home on another lot is no more grounded in reality than that of…liquidation value." In re Yildiz, 2011 Bankr. Lexis 4996 (Bankr. E.D. VA. 2011.)
In addition, the majority of courts have adopted the approach that the appropriate date for valuing a collateral of fixing a secured creditor’s claim is the confirmation date or a date close to confirmation. In re Dheming, 2013 Bankr. Lexis 1166 (Bankr. N.D. Cal. 2013). In this case, the cost approach analysis was for August 9, 2011, the same date the petition was commenced.
In this case, the Court accepts the Debtors’ $250,000 valuation.
Lien Avoidance
11. U.S.C § 522(f):
"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) of this section, if such lien is…(a) a judicial lien…"
A judicial lien is a "lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceedings." 11 U.S.C. § 101. Debtor provides evidence that a judgment was entered against him, and a lien was awarded to National in the
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amount of $21,267.34. Dkt. No. 32-9. The judicial lien appears of a kind not specified in 11 U.S.C §523(a)(5), domestic support obligation. The Debtor also provided the dates and amounts of when other liens encumbered the property, totaling $359,494.88. Dkt. Nos. 32-5, 32-6, and 32-7.
It does not matter where the judicial lien is located on the lien hierarchy of the encumbered property. Owen v. Owen, 500 U.S. 305, 311 (1991). What is paramount is "whether the [judicial lien] impairs an exemption to which [the Debtor] would have been entitled to. Id. In this particular case, it does: all current amount of the liens and the exemption, together, total $402,347.07.
Thus, the Court has determined that the judicial lien in the amount of
$21,267.34 awarded to National impairs the Debtor’s homestead exemption because the lien at issue plus all other liens on the property and the amount of the exemption exceed the value of Debtor’s interest in the property. 11. U.S.C.§522(f)(2).
Opposition: None Service: Proper
As set forth above, the judicial lien of National impairs the Debtor’s homestead exemption, and the Court GRANTS this motion, avoiding this lien in its entirety.
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):
Arturo Middle Ramirez Represented By
George C Panagiotou
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Joint Debtor(s):
Martha Ramirez Represented By
George C Panagiotou
Trustee(s):
Sandra L Bendon (TR) Pro Se
11:00 AM
$240.32.
EH
Docket 94
Opposition: None Service: Proper
The applications for compensation of the Counsel for the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the application of the Trustee’s Counsel, the Court is inclined to ALLOW the following administrative expenses:
Counsel Fees: $13,613.00
Counsel Expenses: $240.32
However, the Court will not authorize payment of fees outside of a final report and accounting to ensure there are sufficient funds to pay all administrative claims pro- rata.
APPEARANCES REQUIRED.
3/4/20
BACKGROUND
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On June 24, 2017 ("Petition Date"), Jasper Stevens (hereinafter "Debtor") and
Brenda Louise Murray Steven (hereinafter "Joint Debtor") (hereinafter collectively "Debtors") filed for Chapter 7 voluntary petition. Robert S. Whitmore (hereinafter "Trustee") was appointed as the Chapter 7 Trustee. The Trustee filed a report of no distribution on August 31, 2017. An order of discharge was entered on October 10, 2017, and the Debtor’s case was subsequently closed.
Trustee later discovered that Debtors had a pre-petition claim against Ocwen Loan Servicing, LLC (hereinafter "Ocwen"). Debtors neither scheduled the claim nor asserted an exemption in their claims against Ocwen. On July 24, 2019, the U.S. Trustee filed a motion to reopen the case because of the pre-petition claim.
The Trustee was reappointed to this case and filed a motion to employ the Turoci Firm to assist the Trustee in settlement proceedings with Ocwen and to advise on other tasks that may concern the rights and remedies of the bankruptcy estate. The motion asked for the approval of the employment as of August 8, 2019 because that is when the Turoci Firm began to render service to the Trustee. The application was approved by the Court on September 18, 2019 and was effective as of August 8, 2019. The Court required that the firm be paid only after a fee application is filed and approved.
As of December 26, 2019, the lead attorney for the Turoci Firm, Julie Philippi, was no longer employed by the firm. Thus, the Turoci Firm and the Trustee decided it was best to dissolve their attorney-client relationship. The Turoci Firm proceeded to file an application for payment of final fees and expenses, requesting fees in the amount of $13,613.00 and expenses in the amount of $240.32.
DISCUSSION
Pursuant to 11 U.S.C §330, the court may award a profession person employed under 11 U.S.C. §327, which considers an attorney a "professional person." In determining the amount of reasonable compensation to be awarded to a professional person, the Court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including (1) the time spent on such services;
the rates charged for such services; (3) whether the services were necessary to the
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administration, (4) whether the services were performed within a reasonable amount of time, (5) whether the person is board certified or otherwise had demonstrated skill and experience in the bankruptcy field, and (6) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3).
Whether the Services Were Necessary
The Trustee employed the Turoci Firm because he believed he needed legal assistance in the settlement proceedings with Ocwen. The Turoci Firm (1) assisted the Trustee in communicating with Debtors’ counsel, (2) negotiated a settlement agreement, (3) reviewed the settlement agreement, and (4) filed multiple motions in regard to the motion to approve compromise of controversy. Turoci Firm alleges that its services performed resulted in $50,000 being paid to the bankruptcy estate. With such a benefit to the estate, the necessity of the services rendered weigh in favor in the reasonableness of the compensation being asked for.
The Time Spent on Such Service and the Reasonableness of When the Service was Performed
Turoci Firm spent a total of 42.20 hours of billable time. This is reasonable, considering the due diligence required to negotiate a settlement agreement and file a motion approving the compromise of controversy. Dkt Nos. 24, 28, 34, and 35.
Furthermore, the Turoci Firm filed an opposition to motion for stay pending appeal. Dkt. No. 60. Thus, these two factors weigh in favor of the reasonableness of the compensation being asked for.
The Qualification of the Firm
The Senior Associate Attorney is board certified as a specialist in consumer bankruptcy law. Dkt. No. 94, Ex. 3. The law clerk and paralegals who worked on this matter had a combined experience of more than fifteen years in the bankruptcy industry. Id. This weighs in favor of the reasonableness of the compensation being asked for.
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Rates Charged for Such Service
Billable Rates per professional:
Professionals | Billable Hourly Rates |
Senior Associate Attorney | $350 |
Law Clerk | $195 |
Senior Paralegal | $195 |
Paralegal | $175 |
The billable rates per the professionals are reasonable compared to the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Furthermore, Trustee’s Counsel filed this application for payment in accordance with Local Bankruptcy Rule 2016-1.
Opposition: None Service: Proper
The applications for compensation of the Counsel for the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the application of the Trustee’s Counsel, the Court is inclined to ALLOW the following administrative expenses:
Counsel Fees: $13,613.00
Counsel Expenses: $240.32
However, the Court will not authorize payment of fees outside of a final report and accounting to ensure there are sufficient funds to pay all administrative claims pro- rata.
APPEARANCES REQUIRED.
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Debtor(s):
Jasper Stevens Represented By Gary S Saunders Frank X Ruggier
Joint Debtor(s):
Brenda Louise Murray Stevens Represented By Gary S Saunders Frank X Ruggier
Movant(s):
The Turoci Firm Represented By Todd L Turoci
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
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EH
Docket 25
BACKGROUND
On December 3, 2019 ("Petition Date"), Gregory A. Shipman (hereinafter "Debtor") filed for Chapter 7 voluntary petition.
In his commencement document, Debtor stated that he resided at 8900 Sugarcane Court, Corona, California 92883 (hereinafter the "Property"). The Property was valued at $415,000, and it was alleged to secure a claim owed by Mr. Cooper in the amount of $281,000. Under Cal. Code of Civ. Proc. §704.730(a)(1), the Debtor claimed an exemption of $75,000 on the Property.
On January 13, 2020, Debtor filed an amended Schedule D. Dkt. No. 23. The amended Schedule D added another lien, from Wild Rose Ranch Community Association, on the Property, but because there was no amount owed on the lien, it stated a zero balance. Id.
On the same day, the Debtor also filed this motion, a motion to avoid the judicial lien entered for Northrup Grumman Federal Credit Union (hereinafter "Northrup"). The judgment was entered on August 19, 2019, in the amount of
$11,077.65. The Debtor alleges that the judgment lien is voidable pursuant to 11
U.S.C. §547(b)(4) because the lien was recorded on or within ninety days before the date of the filing of the petition. In the alternative, Debtor also claim the judicial lien is voidable pursuant to 11 U.S.C. 522(f).
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DISCUSSION
The Court will now discuss each argument in that order, determining whether the lien is voidable pursuant to 11 U.S.C. §547(b) and then pursuant to 11 U.S.C. § 522(f).
It is easy to dispense this argument as not applicable.
11 U.S.C §547(b):
Except as provided in subsection (c) and (i) of this section, the trustee may avoid any transfer of an interest of the debtor in property (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider…" (italicized for emphasis)
The statute is very clear that the discretion whether to avoid such a preferential lien lies with the trustee. This motion was filed by the Debtor, through his counsel.
Nothing in the motion—in the declaration or otherwise—allude to the Trustee, Rod Danielson, explicitly or implicitly, giving this power to the Debtor. Ranier & Assoc. v. Waldschmidt, 464 U.S. 935 (1983) (stating that all five enumerated criteria must be satisfied before a trustee may avoid any transfer of property as a preference.).
Therefore, the Court denies the avoidance of this lien pursuant to 11 U.S.C. §547(b).
Exemptions
11 U.S.C §522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing
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the exemption stated in that subsection. 11 U.S.C. § 522(b).
California happens to be one of those States. States that opted-out of the federal exemption scheme provided by 11 U.S.C § 522(d) can limit their residence to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series of overlapping liens, at the time the earliest lien in the series of overlapping liens was created.
In this case, the first-lien holder, Mr. Cooper, recorded its lien on November 30, 2006, and the second-lien holder, Northrup, recorded its lien on September 11, 2019. Thus, as a series of overlapping liens, the date of the first lien recorded, November 30, 2006, is the determining date of the amount and exemption statute applicable.
Operative since July 1, 1983, California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal.
Code of Civ. Proc. §703.140(b)(5), also known as the "wildcard exemption," or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. §703.730, which provides three different amounts—$75,000,
$100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In this case, the Debtor elected the provision under Cal. Civ. Proc. §704.730(a) (1), giving him an exemption in the amount of $75,000.
The Court may not refuse to honor the exemption absent a valid statutory basis for doing so. Law v. Siegel 134 S. Ct. 1188 (2014) (stating a valid statutory basis would be for 11 U.S.C §§§ 522(c), 522(o), 522(q)). It appears that the Court has no statutory basis to refuse the exemption.
Furthermore, Pursuant to Federal Rule of Bankruptcy Procedure Rule 4003(b)
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, a party in interest may file an objection to the list of property claimed as exempt the later of (1) within thirty days after the meeting of the creditors under §341(a) is concluded or (2) within thirty days after any amendment to the list or supplemental schedules is filed. The §341(a) meeting was held on January 15, 2020, the later of the two days. Thus, the time to object to an exemption has expired. 4 Collier on Bankruptcy ¶ 522.05[2][a] (Richard Levin & Henry J. Sommer eds., 16 ed.); see also Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) (stating that "unless a party in interest objects, the property claimed as exempt…is exempt.")
Valuation of the Property
In 11 U.S.C. § 522(a)(2), "‘value’ is defined as ‘fair market value’ as of the date of the filing of the petition’ unless the property does not enter the estate until after the petition has been filed, in which case the value is determined ‘as of the date such property become property of the estate." 4 Collier on Bankruptcy ¶ 522.03[2] (Richard Levin & Henry J. Sommer eds., 16 ed.). See also Bfp v. Resolution Trust Corp., 511 U.S. 531, 537 (1994).
Courts have not come to a widely decided valuation to be used under 11
U.S.C. §522. Furthermore, "the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property." In re Todd, 194 B.R. 892 (Bankr. MT. 1996) (assessing a value of a home under 11 U.S.C. § 522(a)(2)). Nonetheless, the Court finds it appropriate that a comparable-sales approach should be used to evaluate a property that a debtor resides in.
In addition, the majority of courts have adopted the approach that the appropriate date for valuing a collateral of fixing a secured creditor’s claim is the confirmation date or a date close to confirmation. In re Dheming, 2013 Bankr. Lexis 1166 (Bankr. N.D. Cal. 2013).
Insufficient Evidence
Because the Debtor did not provide an appraisal of the Property on the confirmation date or close to it, the Court is unable to determine the value of the Property. Although the Court could possibly take judicial notice o the value of the
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property form the debtor’s schedule, Debtor has not provided evidence of Mr. Cooper’s lien other than an unauthenticated mini bank statement showing a withdrawal to pay it. No deed of trust was provided or any other evidence in regards to the lien’s value. Thus, because of insufficient evidence, the Court denies this motion to avoid the judicial lien entered for Northrup pursuant to 11 U.S.C. §522(f).
Opposition: None Service: Proper
As set forth above, the Court DENIES this motion pursuant to 11 U.S.C. §547(b) as not applicable and pursuant to 11 U.S.C. §522(f) for a lack of sufficient evidence.
APPEARANCES REQUIRED.
Debtor(s):
Gregory A. Shipman Represented By Douglas A Plazak
Movant(s):
Gregory A. Shipman Represented By Douglas A Plazak
Trustee(s):
Rod Danielson (TR) Pro Se
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EH
Docket 25
BACKGROUND
On October 22, 2019 ("Petition Date"), Wilson Ronald Hernandez (hereinafter "Debtor") and Tatiana Camille Khabbaz (hereinafter "Joint Debtor") (hereinafter collectively "Debtors") filed for Chapter 7 voluntary petition. The deadline to object to the Debtors’ discharge was on January 24, 2020.
Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Debtors petition was selected for reviewed by an independent auditor. 11
U.S.C. §586(f). The Auditors reviewed Debtors’ petition, schedules, and other information filed. The audit report identified two material misstatements: (1) an ownership interest in real property located at 16370 Manzanita Street, Hesperia, CA (hereinafter the "Property") was not reported on Debtors’ Schedule A/B, and (2) the amount reported on Form 122A-1, line 11, was understated by $1,812.62.
The Audit report was filed on December 30, 2019. The U.S. Trustee’s office reviewed the finding in the audit report, and, on January 22, 2020, agents of the U.S. Trustee’s office emailed an inquiry letter to the Debtors’ counsel, requesting Debtors to produce certain documents and explain their ownership interest in the Property.
Fearing that the discharge and dismissal deadlines will expire before the Debtors will respond to the inquiry, the U.S. Trustee now request a motion to extend the discharge and dismissal deadline by sixty days.
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DISCUSSION
Dismissal Deadline
Fed. Rule of Bankr. Proc. 1017(e)(1):
"…on request filed before the time has expired, the court[,] for cause[,] [can extend] the time for filing the motion to dismiss. The party filing the motion shall set forth in the motion all matters to be considered at the hearing. In addition, a motion to dismiss under § 707(b)(1) and (3) shall state with particularity the circumstances alleged to constitute abuse."
When considering an extension of time to object to the Chapter 7 discharged, courts have compiled five "cause" factors which should be considered: (1) whether the movant had sufficient notice of the deadline and the information to file an objection,
the complexity of the case, (3) whether the movant exercised diligence, (4) whether the debtor refused in bad faith to cooperate with the movant, and (5) the possibility that proceeding pending in another forum will result in collateral estoppel of the relevant issues. In re Nowinski, 291 B.R. 302 (Bankr. S.D.N.Y. 2003). Not all the factors may be applicable. In re Bomarito, 448 B.R. 242 (Bankr. E.D. Cal. 2011) (using four out of the five factors to determine whether a U.S. Trustee had cause to extend the discharged deadline).
Even though, under 11 U.S.C §704(b)(1)(A), the U.S. Trustee is tasked to review all materials filed by the Debtors no later than ten days after the date of the first meeting of the creditors, in this case, December 5, 2019, the U.S. Trustee’s office only became aware of material misstatements after the audit was filed. Furthermore, the material misstatements required further inquiry and cooperation from the Debtors. Thus, factors one, two, and three weigh in favor of extending the dismissal deadline. Factor four and five are inapplicable.
Discharge Deadline
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Fed. Rule of Bankr. Proc. 4004(b):
"On motion of any party in interest, after notice and hearing, the court may for cause extend the time to object to discharge…the motion shall be filed before the time has expired."
The word ‘cause’ in this rule means the same as the word ‘cause’ in Fed. Rule Bankr. Proc. 1017. Sullivan v. Stroop, 496 U.S. 478 (1990) (applying the normal rule of statutory construction that identical words used in the same body of statutory law are intended to have the same meaning). Just like Fed Rule Bankr. Proc. 1017, Fed Rule of Bankr. Proc 4004(b) weighs the same factors. To restate and apply these factors would be redundant. Thus, factors one, two and three weigh in favor of extending the discharge deadline. Factor four and five are inapplicable.
Opposition: None Service: Proper
Thus, for the reasons mentioned above, the Court GRANTS an extension of the dismissal deadline and discharge deadline by sixty days after the entering of this judgment.
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):
Wilson Ronaldo Hernandez Represented By Cecil R Taylor
Joint Debtor(s):
Tatiana Camille Khabbaz Represented By Cecil R Taylor
11:00 AM
Movant(s):
United States Trustee (RS) Represented By Cameron C Ridley
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 62
BACKGROUND
On October 16, 2017 ("Petition Date"), Christy Carmen Hammond (hereinafter "Debtor") filed for Chapter 7 voluntary petition. Robert S. Whitmore (hereinafter "Trustee") was appointed as the Chapter 7 Trustee.
On September 7, 2018, the Trustee filed a motion to employ the Turoci Firm as his general counsel to assist in the recovery of estate property and to advise the Trustee concerning rights and remedies of the bankruptcy estate. The motion asked the request to be approved as of August 10, 2018 because the firm began to render services on that date. The application was approved by the Court on October 10, 2018 and was effective as of August 8, 2019. The Court required that the firm be paid only after a fee application is filed and approved.
As of December 26, 2019, the lead attorney for the Turoci Firm, Julie Philippi, was no longer employed by the firm. Thus, the Turoci Firm and the Trustee decided it was best to dissolve their attorney-client relationship. The Turoci Firm proceeded to file an application for payment of final fees and expenses, requesting fees in the amount of $12,274.50 and expenses in the amount of $180.54.
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DISCUSSION
Pursuant to 11 U.S.C §330, the court may award a profession person employed under 11 U.S.C. §327, which considers an attorney a "professional person." In determining the amount of reasonable compensation to be awarded to a professional person, the Court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including (1) the time spent on such services;
the rates charged for such services; (3) whether the services were necessary to the administration, (4) whether the services were performed within a reasonable amount of time, (5) whether the person is board certified or otherwise had demonstrated skill and experience in the bankruptcy field, and (6) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. 11 U.S.C. § 330(a)(3).
Whether the Services Were Necessary
The Trustee discovered there was non-exempt equity in real property at 5918 Ridgegate Drive, Chino Hills, California 91709 (the "Property"). Before proceeding to liquidate the Property and distribute the sale proceeds, the Trustee asked the Turoci Firm to review and analyze Debtor’s documents to assist in the recovery of the Property. The firm prepared and filed an objection to Debtor’s homestead exemption and a compliant for declaratory relief and turnover of the property. Furthermore, it replied to an opposition to employ a real estate broker.
Turoci Firm alleges that its services will result in a judgment against defendant, compelling the defendant to turn over the Property, vacating the Property within twenty days, and awarding the Property to the Trustee. Even though Turoci Firm’s result are speculative, the filing of said documents were instrumental in the Trustee making a claim for the Property. With such a potential benefit to the estate, the necessity of the services rendered weigh in favor in the reasonableness of the compensation being asked for.
The Time Spent on Such Service and the Reasonableness of When the Service was Performed
The Turoci Firm spent a total of 43.30 hours of billable time. This is
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reasonable, considering the due diligence and preparation required to file an application to employ a real estate broker, a motion for turnover of property and for order compelling debtor to vacate and subsequent response, and a motion to object to Debtor’s homestead exemption. Dkt. Nos. 33, 37, 40, and 49. Thus, these two factors weigh in favor of the reasonableness of the compensation being asked for.
The Qualification of the Firm
The Senior Associate Attorney is board certified as a specialist in consumer bankruptcy law. Dkt. No. 94, Ex. 3. The law clerks and paralegals who worked on this matter had a combined experience of more than fifteen years in the bankruptcy industry. Id. This weighs in favor of the reasonableness of the compensation being asked for.
Rates Charged for Such Service
Billable Rates per professional:
Professionals | Billable Hourly Rates |
Senior Associate Attorney | $350 |
Law Clerk | $195 |
Law Clerk | $195 |
Senior Paralegal | $195 |
Paralegal | $175 |
The billable rates per the professionals are reasonable compared to the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Furthermore, Trustee’s Counsel filed this application for payment in accordance with Local Bankruptcy Rule 2016-1.
Opposition: None Service: Proper
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The applications for compensation of the Counsel for the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the application of the Trustee’s Counsel, the Court is inclined to ALLOW the following administrative expenses:
Counsel Fees: $12,274.50
Counsel Expenses: $180.54
However, the Court will not authorize payment of fees outside of a final report and accounting to ensure there are sufficient funds to pay all administrative claims pro- rata.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
The Turoci Firm Represented By Todd L Turoci
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
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Also #17 EH
Docket 105
NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
U.S.C. § 546(a) Also #16
EH
Docket 107
3/4/20
BACKGROUND
On December 18, 2017 (hereinafter the "Petition Date"), Mark Bastorous (hereinafter "Debtor") and Bernadette Shenouda (hereinafter "Joint Debtor") (collectively hereinafter ("Debtors") filed a Chapter 7 voluntary petition.
Subsequently, John P Pringle (hereinafter "Trustee") was appointed to the case as the Chapter 7 Trustee.
In their commencement documents, Debtors listed thirty-seven business entities owned, in part or in whole. The Trustee in fulfilling his duties requested that the Court employ an accounting firm, Hahn Fife & Company, to provide tax preparation, review financial documents, and analyze potential assets. Dkt No. 85.
The Court granted the order to employ the accounting firm, and it was entered on March 18, 2019. Dkt. No. 89.
Hahn Fife & Company examined the financial records produced by the Debtors. The accounting firm concluded that (1) Debtors transferred significant funds between the business entities they owned, (2) Debtors comingled assets and (3) controlled the cash flow between entities without regard to the separate corporate existence of each. Dkt. No. 105; Decl. of Donald T. Fife.
On November 1, 2019, the Trustee filed a motion for an order extending the
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time to file actions under 11 U.S.C §546(a) (hereinafter the "First Motion"). The Trustee asked for the time to be extended to March 6, 2020. The motion was granted. The Trustee now files the same motion for the second time asking for a further sixty- day extension of the deadline.
Simultaneously, the Trustee has also filed a motion to substantially consolidate Debtors’ assets and liabilities with the assets and liabilities of the thirty-seven business entities owned, in part or in whole, by Debtors. Dkt. No. 105. Trustee alleges that he needs the additional time to (1) attend depositions scheduled by the Office of the United States Trustee on March 20, 2020, (2) finish the review of financial records and bank statements for all thirty-seven business entities, (3) attain the approval for the motion for substantive consolidation, and (4) to file approximately eighty avoidance complaints. Dkt. No. 107.
DISCUSSION
11 U.S.C. § 546(a) states:
An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of –
the later of –
2 years after the entry of the order for relief; or
1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A); or
the time the case is closed or dismissed.
Here, application of § 546(a) would result in a deadline to file avoidance actions of Mach 6, 2020– more than two years from the date Debtors filed their petition.
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Trustee asserts that when the motion for substantive consolidation is granted,
which it has, he plans to file approximately eighty avoidance actions. More importantly, if said order is entered after March 6, 2020, then those eighty avoidance actions will be subject to dismissal because they will be filed after the deadline set by the Court, which was previously extended.
The majority of courts have held that because the deadline imposed by 11
U.S.C. § 546(a) is not jurisdictional in nature, it may be waived by a defendant, either through failure to raise the defense or through stipulation. See, e.g., In re Pugh, 158 F.3d 530, 533-34 (5th Cir. 1998) (Section 546(a) statute of limitations is subject to waiver).
Additionally, the section 546(a) deadline is subject to equitable tolling. See, e.g., In re Milby, 875 F.3d 1229 (9th Cir. 2017). As the Ninth Circuit stated in In re Milby:
The doctrine of equitable tolling is read into every federal statute of limitation. Indeed, we have previously applied equitable tolling to § 546(a)(1). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.
The Trustee alleges that he has diligently pursued the estate’s potential rights in connection with potential avoidance claims. He filed a motion to employ an accounting firm, to extend the time twice, to consolidate. Furthermore, he claims that the avoidance actions being contemplated would benefit all the creditors.
Trustee goes on to allege that extraordinary circumstances—lengthy reviews of puzzling financial statements between related entities, third parties, and the Debtors— and Debtors’ delay in production of documents stood in his way and would prevent timely filing. The Court agrees and finds that the Trustee has met his burden.
Opposition: None Service: Proper
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Thus, for the reasons mentioned above, the Court GRANTS an extension of the time to file actions under 11 U.S.C. §546(a) by sixty days after the entry of an order granting 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):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
EH
Docket 3
NONE LISTED -
Debtor(s):
Adlakha & Patel Enterprise Inc Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 8
NONE LISTED -
Debtor(s):
Arturo Garcia Jr. Represented By
Lisa F Collins-Williams
Joint Debtor(s):
Sandra Garcia Represented By
Lisa F Collins-Williams
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Henry R. Huizar Jr Represented By Stephen K Moran
Joint Debtor(s):
Sara Huizar Represented By
Stephen K Moran
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:19-01174 Navarro v. Malkin
EH
Docket 1
NONE LISTED -
Debtor(s):
Arlene M Malkin Represented By Summer M Shaw
Defendant(s):
Arlene Malkin Pro Se
Plaintiff(s):
Norma Navarro Represented By Shalini Dogra
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19
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
2:00 PM
Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(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#: 6:13-01171 Schrader v. Sangha
From: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20
EH
Docket 1
NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:19-01165 Cisneros v. David
A. Cisneros against Anthony J. Davis. (Charge To Estate- $350.00). (Attachments: # 1 Adversary Coversheet) Nature of Suit: (31 (Approval of sale of property of estate and of a co-owner - 363(h))),(11 (Recovery of
money/property - 542 turnover of property)) (Pagay, Carmela) Modified on 11/22/2019. filed by Plaintiff A. Cisneros). (Attachments: # 1 Adversary Coversheet) (Pagay, Carmela)
From: 1/15/20 EH
Docket 6
NONE LISTED -
Debtor(s):
Lauren David Represented By Salvatore Bommarito
Defendant(s):
Anthony J David Pro Se
Plaintiff(s):
A. Cisneros Represented By
Carmela Pagay
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
2:00 PM
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20
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):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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, 11/27/18, 2/26/19,
4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20
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
2:00 PM
Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:17-01085 PRINGLE v. Winn et al
Docket 75
- 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
Douglas A Plazak
Movant(s):
Sterling Security Service, Inc. Represented By Seth W Wiener
Natalia V Knoch Represented By Seth W Wiener
2:00 PM
Steven B Knoch Represented By Seth W Wiener
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#: 6:18-01100 Zamucen & Curren LLP v. Johnson
Also #29 EH
Docket 51
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Zamucen & Curren LLP Represented By Patricia J Grace
Plaintiff(s):
Zamucen & Curren LLP Represented By Patricia J Grace
Trustee(s):
Todd A. Frealy (TR) Represented By
2:00 PM
Monica Y Kim
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
From: 7/31/18, 10/3/18, 1/9/19, 1/30/19, 2/27/19, 7/3/19, 7/17/19, 10/16/19
Also #28 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#: 6:14-01070 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, 10/10/18, 2/27/19, 8/28/19, 11/6/19, 1/15/20, 2/12/20
Also #31 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, 10/10/18, 2/27/19, 8/28/19, 11/6/19, 1/15/20, 2/12/20
Also #30 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nancy Ann Howell Pro Se
Defendant(s):
Nancy Ann Howell Pro Se
Plaintiff(s):
Eisenberg Law Firm, APC Represented By Andrew S Bisom
Law Office of Andrew S. Bisom Represented By
Andrew S Bisom
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
1:00 PM
From: 3/2/20 EH
Docket 36
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
11:00 AM
MOVANT: NEWREZ LCC
From: 2/11/20 EH
Docket 59
Service: Proper Opposition: Late
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Brenda Fleming Bell Represented By Suzette Douglas
Movant(s):
NewRez LLC dba Shellpoint Represented By Kirsten Martinez Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK TRUST NATIONAL ASSOCIATION
EH
Docket 97
NONE LISTED -
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Movant(s):
U.S. Bank Trust National Represented By
Lemuel Bryant Jaquez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
EH
Docket 51
Service: Proper Opposition: Debtors
Even though the retail installment sale contract is illegible, by providing the vehicle registration inquiry report, Kelly Blue Book Value of the property, and the current value of the claim, pursuant to U.S.C. § 362(d)(1), the movant, LBS Financial Credit Union (hereinafter "LBS") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors responded to this motion. They provided evidence of the vehicle being insured and claim that they will cure the defect by the hearing date or enter into an adequate protection to cure the default.
Parties are to update the Court as to the status of adequate protection discussions.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Alejandro J. Casillas Represented By Tina H Trinh
Joint Debtor(s):
Patricia Casillas Represented By Tina H Trinh
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK NA
EH
Docket 42
NONE LISTED -
Debtor(s):
Alfredo Pena Represented By
Dana Travis Milton Williams
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil Norman Harrison
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Riverside, California 92509
MOVANT: THE BANK OF NEW YORK MELLON
From: 1/28/20, 2/4/20, 2/25/20 EH
Docket 60
Service is Proper Opposition: Yes
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
The Bank of New York Mellon, et al Represented By
Anna Landa
11:00 AM
Trustee(s):
Bonni S Mantovani Christopher Giacinto
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES, LLC
From: 2/11/20, 2/25/20 EH
Docket 27
Service: Proper Opposition: Late
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Nagazaki Lung Represented By Nathan Fransen
Joint Debtor(s):
Veronica Lung Represented By Nathan Fransen
Movant(s):
Carrington Mortgage Services, LLC Represented By
Anna Landa
11:00 AM
Trustee(s):
Diana Torres-Brito Julian T Cotton
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES LLC
From: 1/7/20, 2/11/20 EH
Docket 33
Service is Proper Opposition: Late
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Malta Centeno Lambert Represented By Yelena Gurevich
Movant(s):
Carrington Mortgage Services, LLC Represented By
Eric P Enciso Sean C Ferry Erin Elam
Christopher Giacinto
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ALASKA USA FEDERAL CREDIT UNION
EH
Docket 35
Service: Proper Opposition: Debtors
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306.
Steven Pierce and Alejandra Pierce (collectively hereinafter "Debtors") filed a Chapter 13 voluntary petition on April 5, 2019, including their 2017 Acura RDX in their commencement documents. On August 1, 2019, their Chapter 13 plan was confirmed, which states that Debtors will make "current contractual installment payments (ongoing payments)" on the secured claim owned by Alaska USA Federal Credit Union (hereinafter "Alaska").
After not receiving five payments, Alaska filed this motion, pursuant to U.S.C. § 362(d)(1), to have the stay lifted. By providing the retail installment sale contract, the certificate of title, and Debtors admitting to not being current, Alaska has established "cause" that would constitute relief from the automatic stay. In re Elmore, 94 B.R. 670
11:00 AM
(Bankr. C.D. Cal. 1988) (stating that a post-confirmation relief from stay in a Chapter 13 case should normally be based upon a failure to make regular monthly payments to a secured creditor as required by the confirmed plan).
The burden now shifts to the opposing party, the Debtors. Debtors claim that all post- petition arrearage will be cured by the hearing date.
Parties are to update the Court as to the status of adequate protection discussions.
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):
Steven Pierce Represented By Terrence Fantauzzi
Joint Debtor(s):
Alejandra Pierce Represented By Terrence Fantauzzi
Movant(s):
Alaska USA Federal Credit Union Represented By
Diana Torres-Brito
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
Docket 22
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On November 13, 2019 (hereinafter "Petition Date"), Manuel Chavez (hereinafter "Debtor") filed a voluntary Chapter 7 petition. In Debtor’s Schedule A/B, he listed his residence at 84331 Eremo Way, Indio, CA 922203 (hereinafter the "Property") at the current value of $300.000. Dkt. No. 11. Thus, an estate was created, including Debtor’s Property, and the stay simultaneously took effect on November 13, 2019.
On February 13, 2020, Movant, U.S. Bank Trust National, not in its individual capacity but solely as owner trustee for Legacy Mortgage Asset Trust 2017-RPL2, (hereinafter "U.S. Bank"), filed a motion asking for relief from the stay pursuant to 11
11:00 AM
U.S.C. § 361(d)(1) and 11 U.S.C. § 362(d)(2). While the motion was pending, a discharge was entered for the Debtor.
In regard to the discharge, because it was given under Chapter 7, it only pertains to the Debtor, not the estate. 11 U.S.C. § 727. The stay continues on the property of the estate until the property is sold, abandon, or returned to the debtor as exempt property. None of those actions have occurred. Thus, in other words, the stay is terminated as to the Debtor, but it continues as to the estate.
To attain relief from stay under 11. U.S.C § 362(d)(1) "cause" must be shown. U.S. Bank claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the valuation of the property, the note, the deed of trust, corporate assignment of deed of trust, and the current amount of the secured claim, U.S. Bank has shown a negative equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). U.S. Bank has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion. Thus, he has not met his burden.
However, the lack of a response from Debtor, pursuant to Local Bankruptcy Rule
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9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2 and ¶ 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.
Debtor(s):
Manuel Chavez Represented By Brian J Horan
Movant(s):
U.S. Bank Trust National Represented By
Erin M McCartney
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: VW CREDIT, INC.
EH
Docket 16
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On November 27, 2019 (hereinafter "Petition Date"), Richard Lee Dickerson (hereinafter "Debtor") filed a voluntary Chapter 7 petition. In Debtor’s commencement documents, he neither listed the 2016 Ducati 959 Panigale (hereinafter the "Property") nor VW Credit Inc., (hereinafter "VW") as having a secured claim. The failure of the Debtor to list the property nor give notice to VW does not place VW outside the scope of the stay. "The automatic stay is effective upon the date of the filing of the petition…Actions taken in violation of the automatic stay generally are void, even if the creditor had no notice of the bankruptcy estate." In re
11:00 AM
Smith, 875 F.2d 524, 526 (6th Cir. Ct. App. 1989); see also In re Jones, 2009 Bankr. Lexis 2129 (Bankr. N. D. WV. 2009) (stating "in general, property in which the debtor has an interest as of the petition date is property of the estate notwithstanding the fact that it is not listed or scheduled by the Debtor in connection with the filing of the bankruptcy case."). Thus, an estate was created, including Debtor’s property, and the stay simultaneously took effective on November 27, 2019.
Prior to the petition being filed, on October 28, 2019, VW acquired the property. On February 14, 2020, VW filed this motion asking for relief from the stay pursuant to 11 U.S.C. § 361(d)(1) and 11 U.S.C. § 362(d)(2).
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. VW claims that there is a lack of adequate protection of its interest in its property.
Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the valuation of the property and the current amount of the secured claim, VW has shown a negative equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). VW has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally
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presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Richard Lee Dickerson Represented By Nicholas M Wajda
Movant(s):
VW Credit, Inc. Represented By Kirsten Martinez
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
362(c)(4)(A)(ii)
MOVANT: ESTATES OF CORONA RANCH MAINTENANCE CORPORATION
EH
Docket 14
On January 14, 2020 (hereinafter "Petition Date"), Jose Luis Rodriquez ("Debtor") filed for Chapter 13 voluntary petition. Debtor has had an extensive and intensive history with the bankruptcy court starting in 2011.
However, in regard to this motion, the Debtor’s bankruptcy history is more recent. Debtor filed a Chapter 7 voluntary petition on March 9, 2018. In that petition, Bank of New York Mellon, as CIT mortgage Loan Trust 2007-1, filed a motion for relief from automatic stay regarding the Debtor’s residence at 1166 Mandevilla Way, Corona, CA 92879 (hereinafter the "Property"). Dkt. No. 14. The motion was later withdrawn. Dkt. No. 23. Shortly after, the Debtor’s petition was closed pursuant to 11
U.S.C. § 727(a)(8)1.
On August 28, 2019, Debtor filed a voluntary Chapter 13. In re Moore, the court determined that the calculation of the one-year period in 11 U.S.C. §362(c)(3) hinged on when there being "nothing undecided remaining." 337 B.R. 79 (Bankr. E.D.
N.C. 2005). Therefore, when Debtor filed the voluntary Chapter 13 petition, that petition came under the jurisdiction of 11 U.S.C. §362(c)(3), which limited the stay in regard to the debtor to the thirtieth day after the filing of the later case.
However, before the thirtieth day had ran its course, Debtor’s Chapter 13 petition was dismissed due to failure to file required schedules. The order that
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dismissed the petition also vacated the stay. Dkt. No. 10. Debtor then filed this chapter 13 voluntary petition. Movant, Estate of Corona Ranch Maintenance Corporation (hereinafter "Estate of Corona") filed this motion to confirm the termination of the stay or, in the alternative, or no stay is in effect.
When Debtor filed his voluntary Chapter 7 petition on March 9, 2018, Debtor listed the Property on his commencement documents. The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1).
Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. Thus, the Property became part of the estate when this petition was filed on March 9, 2018.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. 3 Collier on Bankruptcy ¶ 362.03 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay continues on the property of the estate until the property is sold, abandon, or returned to the debtor as exempt property. 11 U.S.C. § 362(c)(1). Thus, when the Debtor’s Chapter 7 petition, which was filed on March 9, 2018, was closed, the property was still in the estate and the stay was still in effect.
When Debtor filed his voluntary Chapter 13 petition on August 28, 2019, that petition came under the purview of 11. U.S.C. § 362(c)(3). This subsection limits the duration of the stay in regard to the Debtor. There have been two views if whether under 11. U.S.C. §362(c)(3) if it also terminates in regard to the property of the estate. The 9th Circuit Bankruptcy Appellate Panel found that it does. In re Reswick, 446
B.R. 362 (B.A.P. 9th Cir. 2011) (reasoning that it would be illogical for Congress to terminate the stay under section 362(c)(3)(A) and not property of the estate.).
On the filing of this Chapter 13 voluntary petition, this petition came under the purview of 11. U.S.C. § 362(C)(4)(i):
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If a single or joint case is filed by or against a debtor who is individual in a case under this title and if a 2 or more single or joint cases of the debtor was pending within the previous year but was dismissed, other than a case refiled under a chapter other than Chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go in effect upon the filing of the later case; on…(ii) request on a party in interest, the court shall promptly enter an order confirming that no stay is in effect…"
A party in interest, within thirty days, may, after showing clear and convincing evidence that this case was not filed in bad faith, request the court to order the stay to take effect. 11 U.S.C § 362(c)(4)(B). On February 14, 2020, thirty days have passed with no party in interest making such a request.
Service: Proper Opposition: None
Pursuant to 11. U.S.C. § 362(c)(4), the thirty days have passed for a party in interest to request the court to order the stay to take effect, and thus the Court GRANTS the motion in its entirety, including the 180-day in-rem relief based on a showing of bad faith.
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):
Estates of Corona Ranch Represented By Elsa M Horowitz
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 23
While the Court notes the underlying transaction is a personal property lease, and thus should have been rejected as part of the plan, the Court GRANTS the motion in its entirety based on the Debtor’s stated intent to surrender the vehicle.
APPEARANCES REQUIRED.
Debtor(s):
Malalage Malalasekera Represented By Kevin Tang
Movant(s):
HONDA LEASE TRUST Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: STATEWIDE PROPERTY SERVICES, INC.; TRINCY THOMAS
From: 3/3/20 EH
Docket 8
Service is Improper Opposition: None
For motions for relief from stay set on shortened notice, Judge Houle’s self- calendaring procedures require that telephonic notice of the hearing be provided to all parties entitled to receive notice of the motion. Local Rule 4001-1(c)(1)(A) requires that the debtor be provided notice of motions for relief from stay relating to residential unlawful detainer actions. Therefore, Movant was obligated to provide telephonic notice of the hearing to Debtors. The declaration of telephonic notice submitted by Movant indicates that it did not provide telephonic notice of the hearing to Debtors.
The Court is inclined to CONTINUE the matter to March 10, 2020 at 11:00 a.m. for telephonic notice of the hearing to be provided to Debtors.
APPEARANCES REQUIRED.
Tentative Ruling:
Service: Proper
11:00 AM
Opposition: Debtors
Movant seeks relief from stay to prosecute its unlawful detainer action in state court, based on Debtor’s failure to pay rent as of 10/1/19. Debtors, in opposition, argue without evidence that there is somehow $5,000 in equity in the property. On this record, movant having established cause to lift the stay, the Court is inclined to GRANT the motion in its entirety.
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):
Ricardo Diaz Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Tatiana Lopez Represented By Jaime A Cuevas Jr.
Movant(s):
Statewide Property Services, INC.; Represented By
Barry L O'Connor
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 10
Service: Proper Opposition: None
On January 28, 2020 (hereinafter "Petition Date"), Ana Cecilia Gonzalez (hereinafter "Debtor") filed a voluntary Chapter 13 petition. Prior to this petition being filed, Debtor had filed two other petitions within a one-year period:
On October 8, 2019, Debtor filed a Chapter 13 voluntary petition, case number 6:19-bk-18862-MH, which was dismissed for failure to file required documents on October 28, 2019; and
On November 12, 2019, Debtor filed a Chapter 13 voluntary petition, case number 6:19-bk-18862-MH, which was dismissed for failure to file required documents on December 12, 2019.
Similar to past petitions, this petition was dismissed on February 18, 2020, for failure to file required documents.
11:00 AM
Before this petition was dismissed, on February 12, 2020, Movant, Wilmington Savings Fund Society (hereinafter "Wilmington"), not in its own capacity but as Trustee for Pretium Mortgage Acquisition Trust, filed a motion for relief from stay. Wilmington alleges that on or around March 24, 2017, Jesus Gayosso and Paz Molina De Gayosso, unauthorizedly granted a deed in said Property without any consideration to Debtor. Debtor then filed this petition as part of a scheme to delay, hinder, or defraud it alleged Wilmington.
Based on the multiple bankruptcy filings and unauthorized transfer of interest in the property, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(4) and GRANT relief from Rule 4001(a)(3) stay. The remainder of the 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):
Ana Cecilia Gonzalez Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
CASE DISMISSED 2/28/20
EH
Docket 8
NONE LISTED -
Debtor(s):
Leschell Marie Murphy-Reed Pro Se
Movant(s):
U.S. Bank National Association, not Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ERNESTO SANDOVAL
EH
Docket 6
NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Movant(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DANIEL ESCUTIA
EH
Docket 7
NONE LISTED -
Debtor(s):
Juanita Carlos Medina Pro Se
Movant(s):
Daniel Escutia Represented By John E Bouzane
Trustee(s):
Rod Danielson (TR) Represented By John E Bouzane
11:00 AM
MOVANT: CAMDEN LANDMARK, LLC
EH
Docket 7
NONE LISTED -
Debtor(s):
Tiffini Camille Jackson Represented By
Raj T Wadhwani
Movant(s):
CAMDEN LANDMARK, LLC Represented By Scott Andrews
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:19-01100 Issa v. Delaney et al
J. Michael Issa against Ryan Delaney, John Wong, DOES 1 through 10, inclusive. (Charge To Estate)($350.00) for: 1) Breach of Fiduciary Duty; and Negligence [Demand for Jury Trial] Nature of Suit: (14 (Recovery of money/property - other)) (Ignatuk, Joseph)
From: 9/17/19, 10/15/19, 2/4/20 EH
Docket 1
NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Ryan Delaney Represented By Paul A Reynolds
John Wong Represented By
David P Bleistein Lisa Hiraide
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
From: 9/4/19, 10/1/19, 11/12/19, 12/10/19, 1/7/20
Also #21 EH
Docket 9
NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From:10/1/19, 11/12/19, 12/10/19, 1/7/20
Also #20 EH
Docket 4
NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
EH
Docket 213
NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
11:00 AM
EH
Docket 74
NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Movant(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 45
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: $ 756.57
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):
Lupita Meza Perez Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 18
No opposition has been filed. Service was Sufficient.
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: $ 1,663.00 Trustee Expenses: $ 34.28
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):
Kevin Mathew O'Toole Represented By Daniel King
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 24
No opposition has been filed. Service was Sufficient.
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: $ 1,348.22
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):
Mayra Janette Cazares Represented By Edgar P Lombera
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 17
No opposition has been filed. Service was Sufficient.
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: $ 1,317.10 Trustee Expenses: $ 0.00
The Court is not inclined to approve the $5 in requested costs because Trustee has not provided an itemization or other evidence or documentation supporting the requested costs.
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):
Lennie Clarence Frazier Represented By Robert L Firth
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20
Also #7 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):
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
2:00 PM
Cara J Hagan Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20
Also #6 EH
Docket 29
NONE LISTED -
Debtor(s):
Devore Stop Represented By
Hutchison B Meltzer
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By
2:00 PM
Cara J Hagan Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:19-01129 Roche v. Anderson
From: 12/4/19, 1/15/20 EH
Docket 1
NONE LISTED -
Debtor(s):
Bruce Vermille Anderson Pro Se
Defendant(s):
Bruce Vermile Anderson Pro Se
Plaintiff(s):
Kevin Michael Roche Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:18-01242 Forniss et al v. Morales et al
From: 3/6/19, 3/13/19, 5/22/19, 8/28/19, 12/4/19, 12/18/19, 1/8/20
EH
Docket 1
NONE LISTED -
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Defendant(s):
Stephan Richard Morales Pro Se
Diane Forniss Morales Pro Se
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Plaintiff(s):
Alfonso Forniss Represented By Fritz J Firman
Stephen Forniss Represented By
2:00 PM
Trustee(s):
Fritz J Firman
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19
EH
Docket 1
NONE LISTED -
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 94
On November 11, 2015 ("Petition Date"), Eric Kessell ("Debtor") filed for Chapter 13 voluntary petition. In his commencement documents, Debtor listed the Internal Revenue Service ("IRS") as an unsecured creditor having a claim in the amount of $110,516.00—$65,266.00 not priority and 45,250.00 priority. On January 27, 2016, the IRS filed a claim, "Claim 5-1."
However, there was a discrepancy between what Debtor stated in his commencement document and what the IRS stated in its claim. The IRS listed
$94,707.90 of unsecured priority claim and $16,029.92 of unsecured general claim, totaling $110,737.82.
Debtor’s Chapter 13 plan, which was confirmed on December 29, 2015, scheduled to pay the unsecured priority claim over sixty months at a monthly payment of $754.17. Non-priority unsecured creditors where estimated to get a hundred cents on the dollar. Pursuant to the Chapter 13 plan, Debtor stated he will pay all post- confirmation tax liabilities in a timely manner directly to the appropriate taxing authorities.
While paying his pre-petition tax liability, the IRS alleges that Debtor failed to pay his post-petition taxes:
11:00 AM
Taxable Year | Taxes Due for that Year | Remaining Balance |
2015 | $25,712.00 | $29,775.96 |
2016 | $24,995.00 | $23,726.56 |
2017 | $20,669.00 | $24,019.91 |
2018 | $21,465.00 | $23,422.44 |
2019 | $23,611.00 | Not Calculated |
Specifically, the IRS claims that Debtor failed to make estimated payments for the taxable year 2019. The IRS states that Debtor’s alleged failure falls under 11 U.S.C. § 1307(c) as "bad faith" and it provides the "cause" to request the Court to dismiss Debtor’s Chapter 13 petition and implement a 180-day refiling bar.
Bad Faith
11 U.S.C § 1307(C):
"…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…or dismiss a case under this chapter…for cause, including…"
"A ‘party in interest’ is any party ‘who has an actual pecuniary interest in the case,’ ‘who has a practical stake in the outcome of a case,’ or ‘who will be impacted in any significant way in the case.’" In re Hardy, 589. B.R. 217 (Bankr. D. DC. 2018)
11:00 AM
(citing In re Sobczak, 369 B.R. 512, 518 (B.A.P. 9th Cir. 2007)). In this case, the IRS has standing because it has an actual pecuniary interest and it is a creditor. (In re De la Salle, 461 B.R. 593 (B.A.P 9th Cir.) (discerning no reason why creditors should not be included within the scope of party in interest for purposes of 11U.S.C. § 1307(c).
Subsection 1307(c) then proceeds to list eleven circumstances that would constitute cause. However, ‘bad faith’ is not listed. Nonetheless, bankruptcy courts "routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause.’" In re Goodvin, 548 B.R. 806, 811 (Bankr. N.D. IA. 2016) (quoting Marrama v. Citizens Bank, 549 U.S. 365, 372 (2007)).
Bad faith is determined by the totality of the circumstances test. In re Craighead, 377 B.R. 648, 654 (Bankr. N.D. Cal. 2007). Bankruptcy courts should consider the following circumstances in determining a cause for dismissal under Chapter 13 petition with prejudice for bad faith: (1) whether the debtor misrepresented facts in her petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed her Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filing and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. Ct. App. 1999).
Thus, the Court GRANTS this motion because there is cause shown, the nonpayment of post-petition taxes, to dismiss Debtor’s case with a re-filing bar of 180-days. Pursuant to LBR 9013-1(h), the Court may deem a failure to timely file and serve documents as consent to the granting or denial of the motion. Debtor, not responding to this motion, is deemed to have consent it.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Eric Kissell Represented By
William J Howell
Movant(s):
UNITED STATES OF AMERICA Represented By
Najah J Shariff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 41
NONE LISTED -
Debtor(s):
Bernice Hernandez Antunez Represented By Daniel King
Movant(s):
Bernice Hernandez Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 80
On April 25, 2018 (hereinafter "Petition Date"), Rorye James Mosley, Sr. (hereinafter "Debtor") filed for a Chapter 13 voluntary petition. August 9, 2018, the Court filed an order confirming Debtor’s amended Chapter 13 plan. Dkt. No. 27. The plan payments of $582.00 per month commenced on June 1, 2018 and continued, on that day of the month, for sixty months. Id.
On September 11, 2019, The Chapter 13 Trustee, Rod Danielson (hereinafter the "Trustee"), filed a notice-and-motion order dismissing the Chapter 13 proceeding because Debtor was delinquent in the amount of $1,224.58. Dkt. No. 66. That motion was voluntarily dismissed by the Trustee. Dkt. No. 67. No reason was given.
On December 3, 2019, The Trustee filed another notice-and-motion order dismissing the Chapter 13 proceeding because Debtor was delinquent $1,164.00. Dkt. No. 69. Debtor objected to the motion. Dkt. No. 70. Based on his declaration, Debtor claimed that he "had mailed his payment to bring his plan current[;] however[,] the wrong case was listed on the payment and it was returned to him." Id. He goes on to further state that he had obtained a new cashier check and had mailed in his payment. Id. Debtor then included, in his exhibit, an image of the cashier check in the amount of $1,164.00 named to Trustee. Id.
The hearing was held on January 9, 2020. The Court continued the motion for the following week to January 16, 2020 because the Trustee did not receive the payment at that time. The Court warned Debtor’s counsel that it is the Debtor’s responsibility to have the check at the hearing date if a situation arises where the Trustee does not receive the payment via mail, or else, the case would be dismissed.
11:00 AM
Debtor’s counsel and Trustee agreed to the stipulation made by the Court.
On January 16, 2020, at the hearing, the Trustee had not received the payment. Debtor’s counsel stated that Debtor mailed the payment on January 13, 2020. As was stipulated at the prior hearing date, because Trustee did not receive the payment, the Court dismissed the case.
On the same day, an order-and-notice of dismissal was filed because of the Debtor’s failure to make the plan payments. Dkt No. 76. On February 13, 2020, Debtor filed a motion to vacate the dismissal. Dkt. No. 80. Based on this motion, it appears that Debtor is arguing that his dismissal be vacated on the grounds that it was due to either (1) mistake or excusable neglect or (2) or any other reason justifying relief. Fed R. Civ. Proc. 60(b).
FRCP 60(B)—Mistake
FED. R. CIV. P. Rule 60(b)(1) states:
mistake,…or excusable neglect
Exceptions, including this rule, are reserved for extreme cases. In re Sheehan, 253 F.3d 507 (9th Cir. Ct. App. 2001) (stating the level of weight giving to Fed. R. Civ. P. Rule 60(b).). In this case, "Debtor’s mistake" is not such a case. Debtor was aware that his payment may not be received by the time of the hearing date via mail.
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However, Debtor chose not to take certain measure to guard against such a result. Debtor could have filed a motion to extend the deadline, filed a motion to modify the plan, or contacted the Trustee explaining the situation and asking for additional remedies.
FRCP 60(B)—Excusable Neglect
To determine whether neglect is excusable, the court reviews the four factors set forth in Pioneer Inv. Serv. v. Brunswick Ass’n Ltd. P’ship et al: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay, and (4) whether the movant acted in good faith. 507 U.S. 380, 395 (1993).
With regards to first factor, the Court has received opposition to this motion from the Trustee. Dkt. No. 80. The Trustee states that he has already commenced closing procedures and reopening the case would create numerous efficiencies. Id. He further states that Debtor did not give notice to all claimants addresses on their Official Form 410. Id.
The Court notes that is true. Proper notice was not given. However, because the Debtor’s plan paid all the creditors in full, this factor weighs in favor of the Debtor.
Addressing the Second factor, the Court believes the delay of about a month from entering the dismissal of the motion to filing the motion to vacate is relatively de minimis. The Debtor would only have to pay roughly two monthly payments to cure the delinquency. This factor weighs in favor of the Debtor.
The third and fourth factors, however, weighs against the Debtor. Good faith was not shown. In addition, it was unreasonable for the Debtor to not take precautions when he knew the ramification—that his case would be dismissed. Thus, the Pioneer factors does not weigh in favor of vacating dismissal.
FRCP 60(B)—Other Reason Justifying Relief
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To determine whether relief should be granted under subsection (6), a party must show "extraordinary circumstances" suggesting that party is faultless in the delay. Pioneer Inv. Serv. v. Brunswick Ass’n Ltd. P’ship et al, 507 U.S. at 396. That is, "the party must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1040 (9th Cir. 1993).
In this case, Debtor has not proven that circumstances were out of his control. Debtor was told, through his counsel, that if payment was not received by the Trustee by the time of the hearing date, January 16, 2020, then he should have it ready to be tendered at the hearing. Therefore, Debtor’s testimony is unpersuasive.
Thus, for the reasons stated above, the Court is inclined to DENY the motion. The case is still dismissed.
APPEARANCES REQUIRED.
Debtor(s):
Rorye James Mosley Sr. Represented By Brian J Soo-Hoo
11:00 AM
Movant(s):
Rorye James Mosley Sr. Represented By Brian J Soo-Hoo Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 29
NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 35
NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Movant(s):
Edwin Briones Represented By Kevin Tang Kevin Tang
Gabriela Sandez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 18
Background:
On January 31, 2020 ("Petition Date"), Corey Jason Gomes ("Debtor") filed a voluntary Chapter 13 petition. In his Schedule A/B of his commencement documents, Debtor stated he owned a 2017 Toyota Prius (hereinafter the "Vehicle") located at 27568 Campana Circle Temecula, CA 92591 ("Debtor’s Residence"). On the Petition Date, Debtor valued the Vehicle at $13,928.00. Dkt. No. 1, Schedule A/B. Debtor, also, listed Toyota Financial Services (hereinafter "Toyota") as having a claim, valued at $20,526—$13,928.00 secured and $6,598.00 unsecured—secured by the Vehicle.
On February 19, 2020, Debtor filed a notice of motion-and-motion for order determining value of collateral ("Motion"). Debtor prays for the court to value the Vehicle and claim it secures per his declaration. Debtor provided a billing statement from Toyota reaffirming the value of its claim on January 2, 2020. Dkt. No. 18, Ex. 1. Debtor, also, provided a copy of a value generated by Kelly Blue Book of 2017 Toyota Prius Three Touring Hatchback 4D, which ranges from $12,992 to $14,563.
On March 6, 2020, Toyota filed an opposition to this motion. Pursuant to LBR 9013-1(f), a response on the moving party must be filed and served no later than fourteen days before the date designated for the hearing. Toyota’s response was filed within six days of the designated hearing date. Failure to timely file and serve an opposition may be deemed by the court to be consent to the granting or denial of the motion. LBR 9013-1(h).
In its response to this motion, Toyota requests a continuation of thirty days to
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conduct a formal inspection and appraisal. Dkt. No. 23. Toyota estimates the current fair market value of the property to be $19,175.00. Id. Toyota then argues that the private party value provided by Kelly Blue Book is inconsistent with the pertinent code section, which requires the value to be based on what a retail merchant would charge for the property. Id. In the alternative, Toyota argues that if it be forced to accept the Debtor’s valuation, its security interest will be severely diminished. Id.
Applicable Law:
11 U.S.C §506(a)(2):
If the Debtor is an individual in a case under Chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. [italicized for emphasis]"
In In re Morales, the United States Bankruptcy Court for the Central District of California 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 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, 387 B.R. at 46. The language of § 506(a)(2) provides further support for the use of retail values rather than private party values in the first sentence that states replacement value should be calculated "without deduction for costs of sale or marketing." § 506(a)(2); Morales, 387 B.R. at 46. Although "replacement value" is modified with respect to property acquired for personal use in the second sentence of
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§ 506(a)(2), the rule regarding costs of sale or marketing is not modified and is therefore still applicable. § 506(a)(2); Morales, 387 B.R. at 46. Consequently, in contrast to private party values, "the retail value better approximates a price that includes the ‘costs of sale and marketing,’" even if downward adjustments must be made to accommodate a less then excellent or optimal condition of a vehicle.
Morales, 387 B.R. at 46.
Here, Debtor incorrectly uses the private party.
Tentative:
The Court is inclined to DENY the Motion. APPEARANCES REQUIRED.
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Movant(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8 EH
Docket 0
NONE LISTED -
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 3/3/20 Also #7
EH
Docket 19
Service: Proper Opposition: Yes
Debtor’s opposition indicates that postpetition arrears listed by Movant are incorrect because Debtor has made postpetition plan payments directly to the Chapter 13 Trustee. Nevertheless, it appears that the second payment made by Debtor was only a partial payment. Parties to apprise the Court of the status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Movant(s):
Deutsche Bank National Trust Represented By
11:00 AM
Trustee(s):
Angie M Marth Jacky Wang
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 7
NONE LISTED -
Debtor(s):
Gregory A. Shipman Represented By Douglas A Plazak
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 5
NONE LISTED -
Debtor(s):
John Anthony Percell Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Sergio L Valdez Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Chuckie Harold Elmore Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
John Lee Riggins Represented By Todd L Turoci
Joint Debtor(s):
Bette Ruth Riggins Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jose J Mendez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Carole Christine Bailey Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Philip G. Sullano Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Charles Edward Urick III Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Daniel Gardono Represented By Gregory Ashcraft
Joint Debtor(s):
Dianna Isla Represented By
Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Francine Cloutier Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Elias Jon Salcedo Represented By Daniel King
Joint Debtor(s):
Simone Leigh Salcedo Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Salvador Gonzalez Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Nigel Green Represented By
Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Marcelina Iniquez Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jose Luis Feliciano Represented By Carey C Pickford
Joint Debtor(s):
Linda Joann Feliciano Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Bretton Kulin Represented By Edward T Weber
Joint Debtor(s):
Marissa Kulin Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Nancy C. Noel Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Jim Curtis Lower III Represented By Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Kevin Odinni Lawrence Represented By Summer M Shaw
Joint Debtor(s):
Vonetta Isioma Lawrence Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Patrick E. Berry Represented By Terrence Fantauzzi
Joint Debtor(s):
Michelle L. Brown Berry Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Santos Mercado Macias Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Blanca Bojorquez De Leon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Pete Moises Alvarez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Fiji Simmons Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Willie James Franklin Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
NONE LISTED -
Debtor(s):
Freya Antoinette Foley Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
NONE LISTED -
Debtor(s):
Jay Tony Klester Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 127
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
Docket 120
NONE LISTED -
Debtor(s):
Andrea Millette Tucker Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 109
NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Angelica Gonzalez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
NONE LISTED -
Debtor(s):
Eugene Alexis Padilla Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 82
NONE LISTED -
Debtor(s):
Juanita Francis Casey Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
NONE LISTED -
Debtor(s):
Noel Mallari Represented By
David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 78
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
11:01 AM
Docket 89
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
11:01 AM
EH
Docket 58
NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
NONE LISTED -
Debtor(s):
Victor Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
NONE LISTED -
Debtor(s):
Alexander J Perfinowicz Represented By Manfred Schroer
Joint Debtor(s):
Ingeborg Maria Pefinowicz Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 37
NONE LISTED -
Debtor(s):
Joseph Antonio Alvarado Jr. Represented By Steven A Alpert
Joint Debtor(s):
Rachel Alvarado Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
NONE LISTED -
Debtor(s):
Anthony Santiago Ramos Represented By Kristin R Lamar
Joint Debtor(s):
Lena Marie Ramos Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
NONE LISTED -
Debtor(s):
Julian Keith A. Vernon Represented By
Stuart G Steingraber
Joint Debtor(s):
Marie A. Vernon Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 63
NONE LISTED -
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: ERNESTO SANDOVAL
From: 3/10/20 EH
Docket 6
NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Movant(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
From: 2/20/20 Also #54
EH
Docket 79
NONE LISTED -
Debtor(s):
Julio Melchor Menendez Represented By John F Brady
Movant(s):
Robert A. Hessling, APC Represented By Robert A Hessling
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
$1,648.00, Expenses: $15.00. (Anderson (TR), Karl) From: 2/20/20
Also #53 EH
Docket 71
NONE LISTED -
Debtor(s):
Julio Melchor Menendez Represented By John F Brady
Movant(s):
Karl T Anderson (TR) Represented By Robert A Hessling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
CASE DISMISSED 3/14/19
EH
Docket 48
NONE LISTED -
Debtor(s):
Alfredo N Adriano Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 11/25/19 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
10:00 AM
Trustee(s):
Arturo Cisneros (TR) Represented By Thomas H Casey
11:00 AM
MOVANT: 21ST MORTGAGE CORPORATION
EH
Docket 36
Service: Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). DENY request for relief pursuant to § 362(d)(2) because Movant has not provided any evidence establishing that Debtors lack equity in the subject 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):
David Bloch Represented By
Julie J Villalobos
Joint Debtor(s):
Sarah Bloch Represented By
Julie J Villalobos
11:00 AM
Movant(s):
21st Mortgage Corporation Represented By Diane Weifenbach
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC D/B/A/ MR COOPER
From: 3/3/20 EH
Docket 62
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Judy May Wells Represented By David L Nelson
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SUNKIST ENTERPRISES, INC.
EH
Docket 32
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
Regarding Movant’s request to annul the automatic stay, the Bankruptcy Appellate Panel, 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."). More recently, the Bankruptcy Appellate Panel stated the following regarding the standard for annulment of the automatic stay:
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
11:00 AM
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 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); see also In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1055 (9th Cir. 1997) ("Many courts have focused on two factors in determining whether cause exists to grant relief from the stay: (1) whether the creditor was aware of the bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor.").
Fjeldsted cautioned that the enumerated factors are not a scorecard, but the standards articulated above weigh in favor of annulling the stay in this case. Several hours prior
11:00 AM
to Debtor’s bankruptcy filing, Movant lodged a proposed judgment in state court; a judgment was ultimately entered by the state court six days later. Therefore, it is clear that Movant was unaware of the filing of the bankruptcy petition, which had not yet occurred, when the judgment was lodged. Additionally, the Court notes that the timing of the filing of the bankruptcy petition is inequitable in relation to Movant.
The two primary factors articulated by the Ninth Circuit in In re Nat’l Evtl. Waste Corp. both heavily weighing in favor of annulling the automatic stay, and Debtor not having filed any 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 motion, annulling the automatic stay retroactive to the petition date.
APPEARANCES REQUIRED.
Debtor(s):
Angel Hernandez Represented By Bryn C Deb
Movant(s):
Sunkist Enterprises, inc. Represented By Barry L O'Connor
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JENNIFER SOLARES
EH
Docket 12
Service: Proper Opposition: None
The Court having reviewed the motion, notice appearing proper and no opposition having been filed, the Court is inclined to find that Debtor has provided sufficient evidence to rebut the statutory presumption arising under 11 U.S.C. § 362(c)(3)(C)(II) (cc) that the case was not filed in good faith, and, as a result, the Court is inclined to CONTINUE the automatic stay as to all creditors. The Court is inclined to DENY the request to impose the stay as to all creditors because § 362(c)(4) is inapplicable in this case.
APPEARANCES REQUIRED.
Debtor(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
Movant(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
11:00 AM
Trustee(s):
Rabin J Pournazarian
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: SHARON MEIER SUMMERS
Also # EH
Docket 68
NONE LISTED -
Debtor(s):
Enrique Garcia Represented By Michael R Totaro
Joint Debtor(s):
Flavia C Garcia Represented By Michael R Totaro
Movant(s):
Sharon Meier Summers Represented By Julian K Bach
2:00 PM
EH
Docket 65
NONE LISTED -
Debtor(s):
Enrique Garcia Represented By Michael R Totaro
Joint Debtor(s):
Flavia C Garcia Represented By Michael R Totaro
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Abram Feuerstein esq Cameron C Ridley
10:00 AM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 11/25/19, 3/17/20 EH
Docket 1
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
10:00 AM
Thomas H Casey
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20
EH
Docket 5
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 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 Reem J Bello
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
EH
Docket 55
On March 21, 2017, Margarito Martinez ("Plaintiff") filed a Chapter 13 voluntary petition. On July 19, 2017, Plaintiff’s Chapter 13 plan was confirmed.
On March 15, 2019, Debtor filed a complaint against Cesar Garza ("Garza"), Noe Pelayo, George Macias ("Macias"), Flor Valladares, Henry Gonzalez, West Coast Plus Realty, Inc., Grand Capital Group, and M&M Associates (collectively, "Defendants") for (1) turnover of property; and (2) conversion. On October 18, 2019, default was entered against Defendants. The only party that filed an answer was Macias. Plaintiff took no further action with regard to M&M Associates. The Court entered default against the remainder of Defendants on February 19, 2020. On February 20, 2020, Plaintiff filed a motion for default judgment.
Plaintiff’s complaint relates to attempts to refinance his mortgage during 2016. The complaint asserts that "Garza convinced Plaintiff that he should instead sell his home to a third party who would allow [Plaintiff] to continue to reside in the property and
11:00 AM
eventually repurchase the property." Garza arranged for four individuals to purchase the property, but, as part of the purchase, additional cash in the amount of $21,750 would have to be paid by Plaintiff. Paragraph 21 of the complaint states that: "Garza told Plaintiff that he was not allowed to put the money directly into escrow and that he instead would have to make payments to different entities and Garza would then deposit these funds into the open escrow." Subsequently, Plaintiff made six payments from a 401k loan, totaling $21,378 (the "Funds"), four of which were made to entities related to Garza, and two of which were made to individuals allegedly associated with Garza.
The subsequent history of the Funds is less than clear. The final payment was made approximately four months before Plaintiff filed the instant bankruptcy petition.
According to the complaint, Garza claimed to be holding the Funds in escrow at the time the bankruptcy petition was filed, repeatedly stated that he would return the Funds, but now Garza has admitted that he spent the funds on a new business venture.
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
11:00 AM
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.
The Court notes that Plaintiff has used two different service addresses for this action:
15526 Amar Rd., La Puente, CA 91744 (for Garza, Henry Gonzalez, Flor Valladares, and Grand Capital Group); and (2) 1731 Pass and Covina Rd., La Puente, CA 91744 (for Noe Pelayo and West Coast Plus Realty). Plaintiff has not provided any evidence establishing the source of appropriateness of these service addresses.
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.").
11:00 AM
Here, the complaint includes two causes of action: (1) turnover of property of the estate; and (2) conversion.
Regarding the cause of action for turnover, 11 U.S.C. § 542(a) states:
Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
The standard for a turnover action is well established:
"To prevail in a turnover action under § 542, the party seeking turnover must establish (1) that the property is or was in the possession, custody or control of an entity during the pendency of the case, (2) that the property may be used by the trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate."
In re Bailey, 380 B.R. 486, 490 (B.A.P. 6th Cir. 2008); see also In re Newman, 487
B.R. 193 (B.A.P. 9th Cir. 2013). The complaint contains sufficient evidence to establish the first and third prongs of this test. Regarding the first prong, the complaint states, in paragraph 26, that: "[a]t the time the Bankruptcy Case was filed, Garza claimed to be holding the Funds in escrow for Plaintiff." Regarding the third prong, the value of the funds at issue, and the absence of any claim secured by the Funds, sufficiently establishes that the Funds are of more than inconsequential value to the estate. Regarding the second prong, the Court concludes that the allegations in the complaint are sufficiently clear to establish that the Plaintiff had some property interest in the Funds and that that property interest could have been exempted.
11:00 AM
The Court notes, however, an issue with the request for turnover. First, while the complaint requests turnover as to all defendants, paragraph 26 of the complaint indicates that it was specifically Garza who had possession of the Funds at the time of the bankruptcy filing. The complaint does not contain any allegations that any other defendant had possession or control of the Funds postpetition, and, as a result, only a judgment against Garza appears appropriate.
Regarding the cause of action for conversion, "[t]he elements of conversion are (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by wrongful act inconsistent with the property rights of the plaintiff; and
damages." In re Emery, 317 F.3d 1064, 1069 (9th Cir. 2003). "It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converted has applied the property to his own use." Shopoff & Cavallo LLP v. Hyon, 167 Cal. App. 4th 1489, 1507 (Cal. Ct. App. 2008). Here, Plaintiff has adequately alleged (a) a right to possession of the funds; (b) Garza’s conversion of the funds to his own personal use; and (c) damages. As was stated in the preceding paragraph, however, the only defendant alleged to have committed conversion in the complaint is Garza.
Nevertheless, the Court notes that it has an independent duty to consider whether subject-matter jurisdiction is present. It is not clear that the Court has jurisdiction to enter a money-judgment by way of default on a state law, post-confirmation claim, in a Chapter 13 case.
Amount of Damages
Plaintiff’s complaint contains sufficiently detailed allegations to substantiate the
$21,378 in actual damages. The complaint and the motion for default judgment do not, however, provide the Court with any argument or basis upon which to award punitive damages, attorney’s fees, or prejudgment interest. For that reason, the Court is inclined to limit the judgment to $21,378.
11:00 AM
Conditioned on Plaintiff providing adequate evidence establishing proper service, the Court is inclined to GRANT the motion and issue a default judgment as to Garza in the amount of $21,378 on the cause of action for turnover, and to DENY the motion as to the remaining defendants. Plaintiff to address the Court’s subject matter jurisdiction to enter a money judgment on the claim for conversion.
APPEARANCES REQUIRED.
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
Movant(s):
Margarito Martinez Represented By Christopher J Langley
11:00 AM
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
From: 5/23/19, 8/22/19, 10/17/19, 12/19/19, 2/20/20
Also #1 EH
Docket 1
- NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
11:00 AM
Grand Capital Group Pro Se
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 135
On November 21, 2014, Rula Nino ("Debtor") filed a Chapter 13 voluntary petition. On February 26, 2015, Debtor’s Chapter 13 plan was confirmed.
On January 9, 2020, Trustee filed its Notice of Final Cure Mortgage Payment. On January 29, 2020, Specialized Loan Servicing LLC ("Creditor") filed its response. Creditor’s response indicated that Debtor was $33,220.36 delinquent on postpetition payments.
On January 30, 2020, Trustee filed a motion for order denying discharge and dismissing case. On February 12, 2020, Debtor filed a late response. The response states that Debtor withdrew funds from a retirement account in an amount equal to the postpetition delinquency. Debtor also provides a copy of a cashier’s check in the amount of $33,220.36 addressed to Creditor.
11:00 AM
Pursuant to Debtor’s response, it appears that Debtor has cured, or is ready and able to cure, the material default under the Chapter 13 plan raised by Trustee. For that reason, the Court is inclined to continue the hearing on the motion to confirm cure of the postpetition delinquency.
The Court is inclined to CONTINUE the motion for cure of the postpetition delinquency asserted by Creditor.
APPEARANCES REQUIRED.
Debtor(s):
Rula Nino Represented By
Devin Sawdayi
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Jose Luis Castillo Represented By Sunita N Sood Seema N Sood
Movant(s):
Jose Luis Castillo Represented By Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$1911.25, Expenses: $0.00. EH
Docket 65
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Movant(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 61
On April 27, 2018, Marco & Gloria Magana (collectively, "Debtors") filed a Chapter 13 voluntary petition. At the original confirmation hearing, June 28, 2018, the Court ordered Debtors’ attorney, Daniel King ("Counsel"), to disgorge $1,750 in fees. After the second confirmation hearing, the Court issued an order to show cause why Counsel should not be (1) sanctioned in the amount of $5,000; and (2) ordered to personally appear in all future matters in front of Judge Houle. Debtors’ Chapter 13 plan was ultimately confirmed on August 17, 2018.
On July 15, 2019, Trustee filed a motion to dismiss for failure turnover tax refunds. On August 6, 2019, Debtors filed an opposition stating that they would turnover the tax refunds by the date of the hearing. At the hearing, however, Debtors stated that the IRS intercepted the tax refunds, and the Court continued the matter to November 7, 2019. By the continued hearing, however, Debtors had not taken any meaningful steps to locate the tax returns, The Court dismissed the case on November 7, 2019.
On February 13, 2020, Debtor filed a motion to vacate dismissal. The entirety of Debtors’ argument is the following: "In this case it was misunderstanding that the IRS did not keep debtor’s refund, but receipt of refund by Franchise Tax Board. It was not until the Court had dismissed the case that counsel became aware of this mistake after
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carefully reviewing the case.
On February 19, 2020, Trustee filed opposition arguing that: (1) Debtors provided no explanation for the delay of more than three months in seeking to vacate dismissal; (2) Debtors’ argument makes no sense; (3) notice and service of the motion were inadequate; and (4) the motion is legally deficient.
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." 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 semi-ordinary. On occasion, the requests are legally sound. Here, however, the evidence provided simply indicates that Debtor’s counsel did not take appropriate action to address the pending motion to dismiss.
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
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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).
Furthermore, the Court notes that Debtors’ motion to vacate dismissal is riddled with substantive, grammatical, and typographical errors. The motion does not raise a meaningful argument in support of the relief requested, and the explanation for the dismissal of the case is incoherent. Finally, as pointed out by Trustee, the Court notes that notice and service of the motion was improper.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Marco Tulio Magana Represented By Daniel King
Joint Debtor(s):
Gloria Louisa Magana Represented By Daniel King
11:00 AM
Movant(s):
Marco Tulio Magana Represented By Daniel King
Gloria Louisa Magana Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 2/20/20, 3/12/20 EH
Docket 79
- NONE LISTED -
Debtor(s):
Julio Melchor Menendez Represented By John F Brady
Movant(s):
Robert A. Hessling, APC Represented By Robert A Hessling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 1/16/20 EH
Docket 21
- NONE LISTED -
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Movant(s):
Alejandro E. Penaloza Represented By Sundee M Teeple Sundee M Teeple
Maria G. Penaloza Represented By Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 67
On October 16, 2019, Hakim Iscandari & Christine Allen (collectively, "Debtors") filed a Chapter 13 voluntary petition. On December 26, 2019, HSBC Bank USA. National Association, as Trustee, in trust for the registered holders of ACE Securities Corp. Home Equity Loan Trust, Series 2006-NC3, Asset Backed Pass-Through Certificates ("Creditor") filed a proof of claim for a secured claim in the amount of
$126,479.21 ("Claim 21").
On February 14, 2020, Debtor filed an objection to Claim 21, arguing that Claim 21 was filed one day late and, as a result, should be disallowed.
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
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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 3002(c) provides that, subject to certain exceptions not applicable here, the deadline for filing a proof of claim in a Chapter 13 case is seventy days after the petition date. As noted by Debtors, in this case seventy days after the petition date was December 25, 2019 – in other words, Christmas. FED. R. BANKR. P. Rule 9006(a)(1)(C) provides that if a deadline is on a Saturday, Sunday, or legal holiday, "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." Accordingly, this Court’s notice of bankruptcy,
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issue on October 19, 2019, as docket number 10, specifies a deadline for filing claims of December 26, 2019. Therefore, Debtors’ argument is incorrect.
The Court will OVERRULE the objection.
APPEARANCES REQUIRED. Michael Smith to appear and explain how he signed the supporting declaration in September.
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 33
On January 13, 2020, Tina Gibbons ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2016 Chevrolet Malibu (the "Property"). Pursuant to Claim 2, Alaska USA Federal Credit Union ("Creditor") holds a secured claim against the Property. Claim 2 identifies the total value of Creditor’s claim as
$19,251.90, and lists the secured value of the claim as $16,560.48.
On February 25, 2020, Debtor filed a motion to value the Property; the motion was amended the following day. Debtor asserts that the Property should be valued at
$13,697.
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
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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).
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 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 identifying the "fair purchase price" retail value of the Property. The Court deems the evidence submitted by Debtor to be sufficient, and the Court deems the non-opposition to be consent to the relief requested pursuant to Local Rule 9013-1(h). The Court notes, however, that Debtor has mistakenly used the "secured amount" listed in Claim 2, rather than the total claim amount, when identifying a proposed bifurcation of Claim 2.
Tentative Ruling:
The Court is inclined to GRANT the motion, valuing the Property at $13,697, and bifurcating Claim 2 into a secured claim in the amount of $13,697 and an unsecured claim in the amount of $5,554.90.
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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):
Tina M Gibbons Sr. Represented By Kevin Tang
Movant(s):
Tina M Gibbons Sr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Tina M Gibbons Sr. Represented By Kevin Tang
Movant(s):
Tina M Gibbons Sr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Franco M Romano Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ronnie Lee Minnifield Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lawrence Mitchell Jr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Manuel Haro Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Darlisha Nicole McQueen Represented By Ivan Trahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kim Yvonne Reynolds Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edward Dwayne Lott Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bonifacio Taloma Bagaporo Represented By Lawrence B Yang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tommy Mel Anderson Represented By
James D. Hornbuckle
Joint Debtor(s):
Lidia Elaine Anderson Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Peggy Trang Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Monique Willis Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gerald Leonard LaBarbera Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Geronimo Aguirre Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Qamar Ul Hassan Represented By Donny A Ekine
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):
Christopher Arriaga Represented By Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Amparo Alejo Mercado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Hernan Pizzulin Represented By Tom A Moore
Joint Debtor(s):
Tonya Thomas Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Omar A Guzman Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nathaniel Smith Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose David Plancarte Represented By
W. Derek May
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Deborah Voorhis Harmon Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Almeda Jr. Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 5
- NONE LISTED -
Debtor(s):
Victor Manuel Rosales Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 99
- NONE LISTED -
Debtor(s):
Jeffrey B Jordan Represented By Michael Smith Sundee M Teeple
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:01 AM
Docket 112
- 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
Docket 39
- NONE LISTED -
Debtor(s):
Joseph Paul Nassef Represented By
Bryant C MacDonald
Joint Debtor(s):
Lynne Marie Nassef Represented By
Bryant C MacDonald
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- NONE LISTED -
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
11:01 AM
EH
Docket 61
- NONE LISTED -
Debtor(s):
David K Johnson Represented By Gary J Holt
Joint Debtor(s):
Janet L Johnson Represented By Gary J Holt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 96
- NONE LISTED -
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
- 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
11:01 AM
Docket 51
- 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 53
- 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
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Anthony P Mendoza Represented By Paul Y Lee
Joint Debtor(s):
Lena E Mendoza Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Cynthia Molina Gomez Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Genaro Flores Represented By Todd L Turoci
Joint Debtor(s):
Salome Flores Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Stephanie McCravey Cooper Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
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
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Mark David Dixon Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Jose G. Rodriguez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01197 Itria Ventures, LLC v. Asif et al
From: 2/5/20, 2/20/20 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
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
EH
Docket 64
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306. Denice Laree Grimes’ and Derrick Gregory Grimes’ primary residence, which is at issue in this motion for relief from stay, came into this estate when Denice Laree Grimes and Derrick Gregory Grime (hereinafter "Debtors") filed this petition.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the Adjustable Rate Mortgage Note, the Deed of Trust, the Assignment of Deed of Trust, and evidence of three missed post-confirmation payments, pursuant to U.S.C. § 362(d)(1), Movant, Wilmington Trust National Association, not in its individual capacity, but solely as Trustee for MFRA Trust 2016-1 (hereinafter "Wilmington Trust") has established that its interest is not adequately protected. In re Gauvin, 24
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B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors have not opposed the motion. Thus, they have not met their burden.
However, the lack of a response from Debtors, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2, 3, and 12. DENY 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):
Denice Laree Grimes Represented By
M. Wayne Tucker
Joint Debtor(s):
Derrick Gregory Grimes Represented By
M. Wayne Tucker
Movant(s):
Wilmington Trust, National Represented By Sumit Bode Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 65
- NONE LISTED -
Debtor(s):
Hector Rene Flores Jr. Represented By Kevin Tang
Joint Debtor(s):
Mayra Cecilia Canchola Vasquez Represented By
Kevin Tang
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK TRUST NATIONAL ASSOCIATION
From: 3/10/20 EH
Docket 97
Service: Proper Opposition: Debtor
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306. Katrina Renee McDowell’s primary residence, which is at issue in this motion for relief from stay, came into this estate when Katrina (hereinafter "Debtor") filed this petition.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the note, the deed of trust, the corporate assignment of the deed of trust, and evidence of five missed post-confirmation payments, pursuant to U.S.C. § 362(d)(1), Movant, U.S. Bank Trust National Association as the Trustee of Bungalow Series F Trust
11:00 AM
(hereinafter "U.S. Bank") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has opposed the motion, claiming (1) more payments have been made then what is shown by the movant, (2) all post-petition arrearages will be cured by the hearing date, (3) the Property is necessary for an effective reorganization, and (4) Debtor intends to enter into an adequate protection order with the movant. Dk No. 105, page 2.
The parties should inform the court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Movant(s):
U.S. Bank Trust National Represented By
Lemuel Bryant Jaquez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LBS FINANCIAL CREDIT UNION
From: 3/10/20 EH
Docket 51
Service: Proper Opposition: Debtors
Even though the retail installment sale contract is illegible, by providing the vehicle registration inquiry report, Kelly Blue Book Value of the property, and the current value of the claim, pursuant to U.S.C. § 362(d)(1), the movant, LBS Financial Credit Union (hereinafter "LBS") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors responded to this motion. They provided evidence of the vehicle being insured and claim that they will cure the defect by the hearing date or enter into an
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adequate protection to cure the default.
Parties are to update the Court as to the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alejandro J. Casillas Represented By Tina H Trinh
Joint Debtor(s):
Patricia Casillas Represented By Tina H Trinh
Movant(s):
LBS Financial Credit Union Represented By Karel G Rocha
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 48
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306. Jose M. Cortez’s primary residence, which is at issue in this motion for relief from stay, came into this estate when Jose M. Cortez (hereinafter "Debtor") filed this petition.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the Fixed Rate Mortgage Note, the Deed of Trust, the Home Affordable Modification Agreement, and evidence of five missed post-confirmation payments, pursuant to
U.S.C. § 362(d)(1), Movant, Wells Fargo Bank N.A. (hereinafter "Wells Fargo") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
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The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor has not opposed the motion. Thus, he has not met his burden.
The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶¶ 2, 3, and 12. DENY 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):
Jose M. Cortez Represented By Patricia A Mireles
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
Also #7 EH
Docket 65
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03. Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306.
On June 5, 2018, Ann Marie Pearson (hereinafter "Debtor") filed a voluntary Chapter13 petition. In Debtor’s commencement documents, she listed the 2014 Chevrolet Malibu (hereinafter the "Property") and SchoolsFirst Federal Credit Union (hereinafter "SchoolsFirst") having a claim secured by the Property. Thus, an estate
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was created, including Debtor’s property, and the stay simultaneously took effective on June 5, 2018.
On August 23, 2018, Debtor’s Chapter 13 plan was confirmed. Dkt. No. 18. The plan stated that Debtor would make monthly payments of $278.01 to SchoolsFirst, paying its claim in full. Also, Debtor stated it would pay preconfirmation payments to SchoolsFirst in the amount of $158.00 to provide adequate protection to SchoolsFirst.
On January 28, 2020, Debtor converted her Chapter 13 petition into a Chapter 7 petition. The stay is still in effect pursuant to 11 U.S.C. 362.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. SchoolsFirst claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the valuation of the property, Loan and Security Agreement and Disclosure Statement, Certification of Title, and an account of amount owed, SchoolsFirst has shown a declining equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). SchoolsFirst has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
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Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009).
Furthermore, the lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Ann Marie Pearson Represented By Barry E Borowitz
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Steven M Speier (TR) Pro Se
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MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
Also #6 EH
Docket 66
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03. Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306.
On June 5, 2018, Ann Marie Pearson (hereinafter "Debtor") filed a voluntary Chapter13 petition. In Debtor’s commencement documents, she listed the 2017 Chevrolet Equinox (hereinafter the "Property") and SchoolsFirst Federal Credit Union (hereinafter "SchoolsFirst") having a claim secured by the Property. Thus, an estate
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was created, including Debtor’s property, and the stay simultaneously took effective on June 5, 2018.
On August 23, 2018, Debtor’s Chapter 13 plan was confirmed. Dkt. No. 18. The plan stated that Debtor would make monthly payments of $521.84 to SchoolsFirst, paying its claim in full. Also, Debtor stated it would pay preconfirmation payments to SchoolsFirst in the amount of $298.64 to provide adequate protection to SchoolsFirst.
On January 28, 2020, Debtor converted her Chapter 13 petition into a Chapter 7 petition. The stay is still in effect pursuant to 11 U.S.C. 362.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. SchoolsFirst claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the valuation of the property and an account of amount owed, SchoolsFirst has shown a negative equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). SchoolsFirst has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally
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presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009).
Furthermore, the lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Ann Marie Pearson Represented By Barry E Borowitz
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Steven M Speier (TR) Pro Se
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MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 1/7/20, 2/4/20, 3/3/20 EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: FLAGSTAR BANK, FSB
From: 1/28/20, 2/25/20 EH
Docket 26
Service is Proper Opposition: None
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. DENY alternative request for adequate protection 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):
Rhonda Jan Kennedy Represented By Todd L Turoci
Movant(s):
Flagstar Bank, FSB Represented By Mark S Krause
Erin M McCartney
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Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
Docket 32
- NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Movant(s):
Lakeview Loan Servicing, LLC, and Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 24
Service: Proper Opposition: Debtors
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306.
Franklin Rojas (hereinafter "Debtors") filed a Chapter 13 voluntary petition on October 21, 2019, including their 2015 Toyota Camry in his commencement documents. On February 5, 2020, Debtor’s Chapter 13 plan was confirmed, which states that Debtor will make "regular payments, including any preconfirmation payments" directly to Toyota Financial (hereinafter "Toyota") for 2015 Toyota Camry.
After not receiving three payments, Toyota filed this motion, pursuant to U.S.C. § 362(d)(1), to have the stay lifted. By providing the Retail Installment Sale Contract, the Title Detail, and account of the payments not received, Toyota has established "cause" that would constitute relief from the automatic stay. In re Elmore, 94 B.R. 670 (Bankr. C.D. Cal. 1988) (stating that a post-confirmation relief from stay in a Chapter
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13 case should normally be based upon a failure to make regular monthly payments to a secured creditor as required by the confirmed plan).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor has not opposed the motion. Thus, he has not met his burden.
The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 5. DENY 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):
Franklin Rojas Pro Se
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 45
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On October 30, 2019 (hereinafter "Petition Date"), Jose Antonio Mele (hereinafter "Debtor") and Victoria Isabel Mele (hereinafter "Joint Debtor") (collectively hereinafter "Debtors") filed a voluntary Chapter 7 petition. In Debtors’ Schedule A/B, they listed their residence at 6224 Stanton, Highland, CA 92345 (hereinafter the "Property") at the current value of $370.000. Dkt. No. 11. Thus, an estate was created, including Debtors’ Property, and the stay simultaneously took effect on October 30, 2019.
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On February 3, 2020, Movant, U.S. Wilmington Savings Fund Society FSB as owner Trustee of the Residential Credit Opportunities Trust V-C (hereinafter "Wilmington Savings Fund") filed a motion asking for relief from the stay pursuant to 11 U.S.C. § 363(d)(1).
On February 25, 2020, A hearing was held in regard to the relief from the stay motion filed by Wilmington Savings Fund. The Court found the there was a "robust equity cushion," and there was no default by the Debtors. Dkt. No. 41. Thus, the Court declined the motion without prejudice.
On March 2, 2020, Wilmington Savings Fund filed an amended motion asking for a relief from stay of the Property from the bankruptcy estate. Under LBR 4001-1(C)(1), except provided by this rule, the requirements of LBR 9013-1 through LBR 9013-4 apply to a motion for relief from automatic stay.
Whenever a motion has been denied in whole or in part and a subsequent motion is made for the same relief, in whole or in part, the party seeking such relief must make a declaration setting forth the material facts and circumstances surrounding each prior motion including (1) the date of the prior motion, (2) the identity of the judge to whom the prior motion was made, (3) the ruling, decision, or order; (4) the new or different facts and circumstances claimed; and new or different law or legal precedent claimed to exist. LBR 9013-1(L). A failure to comply with the foregoing requirement is grounds for the court to set aside any order or ruling made on the subsequent motion and subjects the offending party or attorney to sanctions. Id.
In this amended motion for relief from the automatic stay, Wilmington Savings Fund followed the requirement under LBR 9013-1(L). The amended motion provided comparable-sales analysis which appear to justifiable value the Property at $330,000, instead of Debtors’ value of $370,000. The amended motion also showed delinquency totaling $38,996.33.
To attain relief from stay under 11. U.S.C § 362(d)(1) "cause" must be shown. Wilmington claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220
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(B.A.P. 9th Cir. 2010).
By providing the valuation of the property, the note, the deed of trust, corporate assignment of deed of trust, and the current amount of the secured claim, Wilmington Savings Fund has shown a negative equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). U.S. Bank has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtors have not opposed the motion. Thus, they have not met their burden.
The lack of a response from Debtors, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). 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 Antonio Mele Represented By Chris A Mullen
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Joint Debtor(s):
Victoria Isabel Mele Represented By Chris A Mullen
Movant(s):
Wilmington Savings Fund Society Represented By
Kristin A Zilberstein Lior Katz
Trustee(s):
Robert Whitmore (TR) Pro Se
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MOVANT: M&T BANK
EH
Docket 11
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On December 16, 2019, Robert Anthony Lopes (hereinafter "Debtor") filed a voluntary Chapter 7 petition. In Debtor’s commencement documents, he listed the 2016 Jayco Trailer (hereinafter the "Property") and M&T Bank (hereinafter "M&T") having a claim secured by the Property. Thus, an estate was created, including Debtor’s property, and the stay simultaneously took effective on December 16, 2019.
Pursuant to 11 U.S.C. § 521(a)(2)(A), Debtor filed a Statement of Intention,
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surrendering the property. Furthermore, the Trustee has fully administered the estate. Thus, pursuant to 11 U.S.C. § 521(a)(2), after being forty-five days after the first meeting of the creditors, the stay is terminated with respect to this Property. 11 U.S.C.
§§ 521(a)(2)(6) and (a)(2)(7).
To attain relief from stay under 11. U.S.C § 362(d) "cause" must be shown. M&T claims that there is a lack of adequate protection of its interest in its property.
Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the value of the property, Retail Installment Sale Contract, Certification of Title, Debtor’s Statement of Intention, and an account of amount owed, M&T bank has shown "cause." In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982). Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Robert Anthony Lopes Pro Se
Movant(s):
M&T Bank Represented By
Brian T Harvey
Trustee(s):
Robert Whitmore (TR) Pro Se
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MOVANT: EXETER FINANCE, LLC
EH
Docket 9
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On January 31, 2020, Leia Chase (hereinafter "Debtor") filed a voluntary Chapter 7 petition. In Debtor’s commencement documents, she listed the 2015 Lincoln MKC (hereinafter the "Property") and Exeter Finance LLC (hereinafter "Exeter") having a claim secured by the Property. Thus, an estate was created, including Debtor’s property, and the stay simultaneously took effective on January 31, 2020.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Exeter claims that there is a lack of adequate protection of its interest in its property.
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Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the valuation of the property, Retail Installment Sale Contract, Certification of Title, and an account of amount owed, Exeter has shown a negative equity cushion and has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Exeter has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009).
Furthermore, the lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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.
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Debtor(s):
Leia Chase Represented By
Keith Q Nguyen
Movant(s):
Exeter Finance, LLC Represented By Cheryl A Skigin
Trustee(s):
Karl T Anderson (TR) Pro Se
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MOVANT: MIESHA T. JOHNSON
EH
Docket 7
Service: Proper Opposition: None
The Court has reviewed the motion, and the service and notice appear proper. On February 24, 2020 (hereinafter "Petition Date"), Miesha T. Johnson (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
Debtor had one prior Chapter 13 voluntary petition, case number 16:19-bk-19108-MH ("Prior Case"), pending and dismissed within one-year period. Pursuant to 11 U.S.C. § 362(c)(3), The automatic stay in respect to the Debtor expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtor filed this motion to continue the stay pursuant to 11. U.S.C 362(c)(3)(B). The Prior Case was dismissed at the confirmation hearing. Debtor declared that the Prior Case was dismissed "as a result of a slip-and-fall accident" occurring on August 2019. Dkt. No. 7. Decl. of Miesha T. Johnson. Debtor’s business income drastically decreased because she had to temporarily hire someone to help run her business. In addition, Debtor’s grandmother passed away on November 13, 2019. Id. Debtor helped cover the funeral cost of her grandmother’s passing. Id.
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The Prior Case was dismissed at the confirmation hearing. Thus, the filing of this petition lacks the presumption of not being filed in good faith. 11 U.S.C § 362(c)(3) (C)(i). Furthermore, after recovering from her injuries and ending her temporary employment of the hired help, Debtor provided evidence that she is able and willing to make regular payments under her plan. Id. Thus, the Court is inclined to GRANT the motion. The stay remains in effect against all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Movant(s):
Miesha T. Johnson Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: ELSY G. MEJIA
EH
Docket 18
Service: Proper Opposition: None
The Court has reviewed the motion, and the service and notice appear proper. On March 2, 2020 (hereinafter "Petition Date"), Elsy G. Mejia (hereinafter "Debtor") filed a Chapter 13 voluntary petition. Pursuant to 11 U.S.C. § 362(c)(3), The automatic stay in respect to the Debtor expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtor had one prior Chapter 13 voluntary petition, case number 16:16-bk-12849-MH ("Prior Case"), pending and dismissed within one-year period. Debtor was delinquent on plan payments in the amount of $1,200.00. Debtor opposed the motion from the Trustee, Rod Danielson, to dismiss her case. In the opposition, Debtor neither stated why she was delinquent nor how she would repay the amount owed. She stated that "she would not be able to pay the balances owed without the assistance of the Chapter 13 Bankruptcy and humbly request the court to allow her to continue with the case." Prior Case, Dkt. No. 69, Decl. of Elsy G. Mejia.
On December 5, 2019, the hearing was held on the Trustee’s motion to dismiss
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because of delinquent payments. Because Debtor did not appear, the Court dismissed her case.
Debtor now filed this motion to continue the stay pursuant to 11. U.S.C 362(c)(3)(B). However, because the prior case was dismissed because Debtor was delinquent on plan payments, the filing of this petition, is presumed to not be filed in good faith. 3 Collier on Bankruptcy ¶ 362.06[3][b] (Richard Levin & Henry J. Sommer eds., 16th ed.).
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor, yet again, did not allude to why she was unable to make the Prior Case’s plan payments. Debtor also did not state, specifically, how she would make this play payments and avoid further delinquencies. She made a general blank statement, "I am ready to complete my chapter 13 plan[;] I am proposing to pay 100% of my unsecured debts and to pay the plan though the Trustee’s ACH system[; and] I am filing this case to reorganize my debts and get a fresh start." Dkt. No. 18, Decl. of Elsy G. Mejia.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor has not provided evidence more than mere statements.
Debtor’s statements alone are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith. Thus, the Court is inclined to DENY the motion. The stay does not remain in effect against all creditors.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Elsy G. Mejia Represented By
Maria C Hehr
Movant(s):
Elsy G. Mejia Represented By
Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18, 11/6/18, 12/18/18, 3/5/19, 3/26/19, 8/20/19, 10/29/19, 12/17/19, 1/28/20
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
Requiring Status Report EH
Docket 4
- NONE LISTED -
Debtor(s):
Dimlux LLC Represented By
Donald Beury
2:00 PM
MOVANT: KIPPARTNERS, LP
EH
Docket 45
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
From: 9/4/19, 10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20
Also #21 & #22 EH
Docket 9
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
EH
Docket 107
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From:10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20
Also #20 & #21 EH
Docket 4
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
Adv#: 6:19-01122 Whitmore v. Labor Commissioner of the State of California
From: 11/6/19, 1/15/20 EH
Docket 1
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Labor Commissioner of the State of Represented By
Melvin Yee
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#: 6:18-01222 Anderson, Chapter 7 Trustee v. Bobby Lee Associates, LLC
From: 1/16/19, 4/17/19, 6/12/19, 9/18/19, 10/2/19, 12/11/19
EH
Docket 1
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Bobby Lee Associates, LLC Represented By Keith S Knochel
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01227 Anderson, Chapter 7 Trustee v. Wang et al
From: 9/18/19, 12/11/19 EH
Docket 13
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Ming Chung Wang Pro Se
LiLi Chang Represented By
Lawrence B Yang
JWLC Imports, Inc. Pro Se
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
2:00 PM
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20
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):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
From: 1/15/20 EH
Docket 17
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
EH
Docket 1
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A Crowder
Defendant(s):
Marc Anthony Capoccia Pro Se
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: MIDFIRST BANK
EH
Docket 44
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT requests under ¶¶ 2, 3, and 14.
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jorge Luis Luviano Represented By James G. Beirne
Joint Debtor(s):
Giovanna Toledo De Luviano Represented By James G. Beirne
11:00 AM
Movant(s):
MidFirst Bank Represented By Gilbert R Yabes Joseph C Delmotte Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: RIVERSIDE CENTURY HILLS, INC.
EH
Docket 82
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Movant(s):
Riverside Century Hills, Inc. Represented By Erin A Maloney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 38
- NONE LISTED -
Debtor(s):
Shannon Williams Represented By Terrence Fantauzzi
Movant(s):
The Bank of New York Mellon fka Represented By
Merdaud Jafarnia
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 34
Service: Proper Opposition: None
The Court is inclined to
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT requests under ¶¶ 2 and 12.
-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):
Joel Eggleton Represented By Sundee M Teeple
Joint Debtor(s):
Heather Marie Eggleton Represented By Sundee M Teeple
11:00 AM
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
From: 3/3/20 EH
Docket 54
Service: Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Xavier C. Luna Represented By Christopher J Langley
Movant(s):
JPMorgan Chase Bank, National Represented By
Nancy L Lee Merdaud Jafarnia
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AHM, LLC
EH
Docket 27
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(2).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT requests under ¶¶ 2 and 13.
-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):
Bruce Vermille Anderson Pro Se
Movant(s):
AHM, LLC Represented By
Vikrant Chaudhry
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 2/25/20 EH
Docket 29
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtors had a previous case dismissed on April 25, 2019. Debtors not having filed a motion to continue the automatic stay, the automatic stay in the instant case expired on September 22, 2019.
11:00 AM
Therefore, the automatic stay having terminated as a matter of law, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
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
Gilbert R Yabes Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DARLE STONE AS EXECUTOR OF ESTATE OF WALTER LOUGHRIDGE
EH
Docket 13
Service: Proper Opposition: None
11 U.S.C. § 362(c)(4)(i) provides that
if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case
Here, Debtors had three previous, joint Chapter 13 cases dismissed in the year preceding the instant bankruptcy case. Debtors not having filed a motion to impose the automatic stay, the automatic stay did not arise in this case. Therefore, the automatic stay never having arisen in this case, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jerry Arnold La Cues Pro Se
Joint Debtor(s):
Pamela Ann La Cues Pro Se
Movant(s):
Bradley Yourist Represented By
Bradley Jerrod Yourist
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: INTERESTED PARTY AMERICAN FINANCIAL CENTER, INC (AFCI)
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(4) based on Movant having demonstrated the existence of a scheme to "delay, hinder, or defraud" creditors that involved the unauthorized transfer of an interest in the subject real property and the filing of multiple bankruptcies affecting the real property.
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT annulment of the automatic stay to the petition date. The Court finds that Movant did not have notice of the bankruptcy filing at the time it recorded a notice of sale, took no further action in violation of the automatic stay once the bankruptcy filing was discovered, and promptly moved to rectify the issue once discovering the bankruptcy filing. Furthermore, the Court finds that the unauthorized transfer of the subject real property was clearly a bad faith effort to delay Movant, and that either Debtor was involved in this fraudulent scheme, or, more likely, that Debtor is unaware of the recorded transfer of an interest in the subject real property.
-GRANT requests under ¶¶ 2 and 10.
-DENY request under ¶ 11 for lack of cause shown. The request under ¶ 11 is an extraordinary request that the Court only grants in the most egregious of
11:00 AM
circumstances. While the facts asserted by Movant clearly establish bad faith, the scheme described is not uncommon. Furthermore, the Court notes that the relatively short duration of the scheme weighs against the issuance of an order providing indefinite relief from stay to Movant.
-DENY request under ¶ 14 as moot because it does not appear to request any independent relief.
APPEARANCES REQUIRED.
Debtor(s):
Young Shin Kim Pro Se
Movant(s):
American Financial Center Inc. Represented By Anne C Manalili Lori E Eropkin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ELSY G. MEJIA
From: 3/24/20 EH
Docket 18
Service: Proper Opposition: None
The Court has reviewed the motion, and the service and notice appear proper. On March 2, 2020 (hereinafter "Petition Date"), Elsy G. Mejia (hereinafter "Debtor") filed a Chapter 13 voluntary petition. Pursuant to 11 U.S.C. § 362(c)(3), The automatic stay in respect to the Debtor expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtor had one prior Chapter 13 voluntary petition, case number 16:16-bk-12849-MH ("Prior Case"), pending and dismissed within one-year period. Debtor was delinquent on plan payments in the amount of $1,200.00. Debtor opposed the motion from the Trustee, Rod Danielson, to dismiss her case. In the opposition, Debtor neither stated why she was delinquent nor how she would repay the amount owed. She stated that "she would not be able to pay the balances owed without the assistance of the Chapter 13 Bankruptcy and humbly request the court to allow her to continue with the case." Prior Case, Dkt. No. 69, Decl. of Elsy G. Mejia.
11:00 AM
On December 5, 2019, the hearing was held on the Trustee’s motion to dismiss because of delinquent payments. Because Debtor did not appear, the Court dismissed her case.
Debtor now filed this motion to continue the stay pursuant to 11. U.S.C 362(c)(3)(B). However, because the prior case was dismissed because Debtor was delinquent on plan payments, the filing of this petition, is presumed to not be filed in good faith. 3 Collier on Bankruptcy ¶ 362.06[3][b] (Richard Levin & Henry J. Sommer eds., 16th ed.).
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor, yet again, did not allude to why she was unable to make the Prior Case’s plan payments. Debtor also did not state, specifically, how she would make this play payments and avoid further delinquencies. She made a general blank statement, "I am ready to complete my chapter 13 plan[;] I am proposing to pay 100% of my unsecured debts and to pay the plan though the Trustee’s ACH system[; and] I am filing this case to reorganize my debts and get a fresh start." Dkt. No. 18, Decl. of Elsy G. Mejia.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, the Debtor has not provided evidence more than mere statements.
Debtor’s statements alone are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith. Thus, the Court is inclined to DENY the motion. The stay does not remain in effect against all creditors.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Elsy G. Mejia Represented By
Maria C Hehr
Movant(s):
Elsy G. Mejia Represented By
Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DOMINGO RAMIREZ & ROCIO RAMIREZ
EH
Docket 9
Service: Adequate Opposition: Yes
The Court having reviewed the motion, and notice appearing adequate, finds that the statutory presumption that the case was filed in bad faith pursuant to 11 U.S.C. § 362(c)(3)(C) has not arisen in this case, and that, in light of Debtors’ offer to enter into an adequate protection agreement with the mortgagee, Debtor has provided sufficient evidence to establish that the case was filed in good faith. Therefore, the Court is inclined to GRANT the motion, CONTINUING the automatic stay as to all creditors. Debtors to address adequate protection discussions, if any, with mortgagee.
APPEARANCES REQUIRED.
Debtor(s):
Domingo Ramirez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Rocio Ramirez Represented By Jaime A Cuevas Jr.
11:00 AM
Movant(s):
Domingo Ramirez Represented By Jaime A Cuevas Jr.
Rocio Ramirez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Also #13 EH
Docket 56
BACKGROUND
On September 26, 2011 ("Petition Date"), Maximino Romero Torres (hereinafter "Debtor") and Rebecca Anne Torres (hereinafter "Joint Debtor") (together hereinafter "Debtors") filed for Chapter 7 voluntary petition.
In their commencement documents, Debtors listed their residence at 5975 Merced Road, Oak Hills, California 92344 (hereinafter the "Property"). The value of the Property was listed at $60,500.00, and the amount the Debtors’ homestead exemption, under Cal. Code Civ. Proc. §430(b)(1), in the Property was $42,303.71, the same amount as the secured claim on the Property owed by Chase Home Finance (hereinafter "Chase").
On March 21, 2011, Debtors amended their Schedule B and Schedule C. Dkt.
Nos. 17 and 18. However, Debtors left the Property’s value and exemption amount unchanged. Id. On May 19, 2011, Debtors received a discharge. The case was subsequently closed on May 23, 2011.
On February 15, 2019, Debtors filed a motion to reopen their case to avoid a lien against their Property (hereinafter "First Motion to Reopen"). Dkt. No. 25.
Debtors, in their First Motion to Reopen, stated that they were unaware of an abstract
2:00 PM
lien judgment placed on the Property on September 21, 2009, filed by Ford Motor Credit Company, LLC (hereinafter "FMC") and entered by Superior Court of California, County of San Bernardino.
Debtors’ counsel became aware of the lien because the judgment was renewed on May 15, 2018. The renewed judgment amount accrued to $15,648.23 because of interest after judgment, credit after judgment, and fee for filing renewal application.
On March 19, 2019, after reviewing the motion and good cause appearing, the Court granted the motion to reopen Debtors’ case for a period of sixty days. Dkt. No.
The motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) was subsequently filed by Debtors on March 29, 2019 (hereinafter "First Motion to Avoid Lien"). Dkt. No. 28.
However, the motion was denied on April 26, 2019. Dkt. No. 30. The Court reasoned that Debtors provided insufficient evidence of the exempt status and the fair market value of the Property: the Debtors erroneously used the same exempt value as the secured claim value, and did not provide evidence of the fair market value of the Property. Id. On May 30, 2019, Debtors filed a second motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522 (f) (hereinafter the "Second Motion to Avoid Lien"). Dkt. No. 32. Even though the sixty-day period had expired on May 18, 2019, the Court still heard the motion and placed it on its calendar for hearing on July 31, 2019. Dkt. No. 35.
On July 31, 2019, the Court heard the matter. Yet, again, the Court denied the motion without prejudice because of a list of errors:
On page 2, paragraph 5 of the motion, Debtors placed the wrong exempted amount.
on page 2, paragraph 9 of the motion, Debtors allege that the fair market value of the property was $60,500; however, they provided an appraisal claiming the fair market value of the property was $49,000;
on page 2, paragraph 10 of the motion, Debtor failed to include Chase’s lien on the property, alleged to be in the amount of $42,303.71; etc.
On September 5, 2019, Debtors filed a third motion to avoid FMC’s abstract
2:00 PM
judgment lien under 11 U.S.C. §522(f) (hereinafter "Third Motion to Avoid Lien"). Dkt. No. 40. Yet again, on October 9, 2019, because of a list of errors and insufficient evidence that were listed above but never rectified, the Court denied the motion and closed the case.
On November 5, 2019, Debtors filed a second motion to reopen the case to avoid a lien (hereinafter "Second Motion to Reopen"). After reviewing the case and good cause appearing, the Court granted the Second Motion to Reopen for a period of sixty days. Dkt. No. 54. The Debtors subsequently filed a fourth motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) (hereinafter "Fourth Motion to Avoid Lien"). Dkt. No. 56.
DISCUSSION
I. Exemptions
11 U.S.C §522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing the exemption stated in that subsection. 11 U.S.C. §522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C §522(d) can limit their residence to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series, at the time the earliest lien in the series of overlapping liens was created.
In Debtors’ declaration in support of the motion, it states that Chase incurred a secured claim on August of 1990. However, like the other motions to avoid the FMC’s abstract judgment lien, this motion does not have any evidence of Chase’s
2:00 PM
lien. The lack of this evidence significantly prevents the Court to determine if FMC’s lien can actually be voided under 11 U.S.C. §522(f).
Without evidence of Chase’s lien or its value, it quite difficult to determine the homestead exemption amount. The Debtors are allowed an exemption of their aggregate interest in the real property that the debtors use as a residence up to the value of the exemption. When Debtors’ homestead is subjected to a valid mortgage, which the Debtors allege the Chase lien is, the exemption is applied to the unencumbered interest of the first mortgage.
Furthermore, California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal. Code of Civ. Proc. § 703.140, including an homestead exemption of $24,060, or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. § 704.730, which provides three different amounts—$75,000, $100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In their Memorandum of Points and Declaration of James A. Alderson in their Fourth Motion to Avoid the Lien, Debtors allege to exempt the Property under Cal.
Code of Civ. Proc. §403(b)(1). Cal. Code of Civ. Proc. §403(b)(1), has nothing to do with homestead exemptions. This provision pertains to reclassification of civil actions and proceedings. However, on page 2, on Paragraph 5, Debtors claim an exemption in the amount of $18,196.29 under Cal. Code of Civ. Proc. §703(b)(1). This pertains to the correct section, exemptions, but it does not enlighten the court to what homestead exemption the Debtors elect.
Nonetheless, under either of exemptions the Debtors can elect, the property would be encumbered if there was evidence of Chase’s lien existing and the value of that lien being what the Debtors allege. Yet again, the Court has no choice but to deny the motion after the Debtors fail to provide evidence that the Court has repeatedly asked for. In other words, without proof of a senior lien, there is sufficient equity in the residence to satisfy both the claimed exemption and the Ford judgment, and thus the lien does not impair the exemption.
Opposition: None
2:00 PM
Service: Proper
As set forth above, the Court DENIES this motion with prejudice. After repeatedly allowing the Debtors multiple bites at the proverbially apple and stating the type of evidence needed to determine whether the motion should be granted, the Court hereby orders that the case be closed.
APPEARANCES REQUIRED.
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Movant(s):
Maximino Romero Torres Represented By James A Alderson
Rebecca Anne Torres Represented By James A Alderson James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
2:00 PM
Also #12 EH
Docket 64
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18, 11/6/18, 12/18/18, 3/5/19, 3/26/19, 8/20/19, 10/29/19, 12/17/19, 1/28/20, 3/24/20
EH
Docket 18
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
Also #16 EH
Docket 188
On January 9, 2018, Jose de Jesus Hernandez ("Debtor") filed a Chapter 11 voluntary petition. On December 10, 2018, Debtor filed its first Chapter 11 plan and disclosure statement. On July 9, 2019 Debtor filed an amended disclosure statement and amended Chapter 11 plan. On November 6, 2019, the Court entered an order denying approval of Debtor’s amended disclosure statement. On November 15, 2019, Debtor filed the second amended disclosure statement and second amended Chapter 11 plan (the "Plan"). On February 7, 2020, the Court entered an order approving Debtor’s second amended disclosure statement.
The Court set a hearing on confirmation of the Plan for March 31, 2020. On February 6, 2020, Debtor filed a notice of confirmation hearing. On February 20, 2020, Debtor filed a certification of service indicating service of the plan package, including: (a) ballots; (b) the Plan; (c) the second amended disclosure statement; (d) order approving the second amended disclosure statement; and (e) notice of confirmation hearing. On March 2, 2020, the Court approved a stipulation between Debtor and the California Department of Tax and Fee Administration ("CDTFA") regarding plan treatment. This stipulation incorporated a previous stipulation approved on May 17, 2019, which provided, inter alia, that CDTFA "stipulates to cast a vote in favor confirmation of
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Debtor’s Plan of Reorganization once the disclosure statement is approved and solicitation of the Plan is authorized by the court."
On March 17, 2020, Debtor filed a memorandum of points and authorities and a summary of ballots. The Court notes that these documents were filed four days after the Court’s directed deadline of March 13, 2020.
Ballots
Pursuant to declaration filed February 20, 2020, Debtor timely transmitted its disclosure statement, Plan, ballots, and notice of confirmation hearing. The only ballot received by Debtor was from On Deck Capital, a Class 1 creditor which voted to accept Debtor’s Plan.
Classes
Unclassified Claims:
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payments ending in January 2023. Debtor has stipulated with CDTFA, however, to pay its claim at 7% interest.
$139,434.96, to be paid in equal monthly payments over sixty months ending in June 2023. Class 1 has voted to accept the Plan.
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Plan Confirmation
"The bankruptcy court must confirm a Chapter 11 debtor’s plan of reorganization if the debtor provides by a preponderance of the evidence either (1) that the Plan satisfies all thirteen requirements of 11 U.S.C. § 1129(a), or (2) if the only condition not satisfied is the eighth requirement, 11 U.S.C. § 1129(a)(8), the Plan satisfies the ‘cramdown’ alternative to this condition found in 11 U.S.C. § 1129(b), which requires that the Plan ‘does not discriminate unfairly’ against and ‘is fair and equitable’ towards each impaired class that has not accepted the plan." In re Ambanc La Mesa Ltd. P’ship, 115 F.3d 650, 653 (9th Cir. 1997).
A. 11 U.S.C. § 1129(a) requirements
1129(a)(1): "The plan complies with the applicable provisions of this title." The
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legislative history indicates that this requirement primarily refers to the requirements of 11 U.S.C. §§ 1122 and 1123. See In re Multiut Corp., 449 B.R. 323, 333 (Bankr.
N.D. Ill. 1984). Section 1122 deals with the classification of claims, and requires that claims in a single class be substantially similar. The Court finds that the demarcation of classes is proper. Section 1123 deals with the contents of a plan, and identifies certain mandatory and permissive provisions. For the reasons set forth in the confirmation brief, it appears that Debtor is in compliance with § 1123.
1129(a)(2): "The proponent of the plan complies with the applicable provisions of this title." The legislative history indicates that this requirement primarily refers to the disclosure requirements in § 1125. See In re Capitol Lakes, Inc., 2016 WL 3598536 at
*2 (Bankr. W.D. Wis. 2016). Here, the Court has approved Debtor’s disclosure statement, and Debtor has provided a service declaration indicating that the required documents were served on creditors, and, therefore, it appears that this requirement has been satisfied.
1129(a)(3): FED. R. BANKR. P. Rule 3020(b)(2) provides that: "If no objection is timely filed, the court may determine that the plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on such issues." Here, no objection has been timely filed, and, as such, the Court deems the Plan to have been filed in good faith and not by any means forbidden by law. Therefore, this requirement is satisfied.
1129(a)(4): Section II.B.1 of the Plan states that Court approval of administrative fees is required prior to payment. Therefore, it appears that this requirement has been satisfied.
1129(a)(5): Because Debtor is an individual, this provision is inapplicable.
1129(a)(6): Because Debtor is an individual, this provision is inapplicable.
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1129(a)(7): This provision requires that either: (a) each class accepts the plan; or (b) will receive at least as much as it would receive in a hypothetical liquidation under Chapter 7. Debtor confirmation brief only vaguely addresses this provision.
Liquidation analysis is provided as the final page (final attachment) to Debtor’s Plan.
1129(a)(8): All classes are not deemed to have accepted the Plan. Confirmation brief addresses cramdown of classes 2, 3, 6, 7, and 9.
1129(a)(9): This requirements appears to have been satisfied because administrative fees will be paid on the later of: (a) the effective date of the plan; (b) the date upon which an order is entered allowing the fees; or (c) a later date agreed to by the claimant. Priority tax claims are to be paid with 5% (or 7%) interest in full within sixty-months of the petition date.
1129(a)(10): The ballot summary and ballots submitted by Debtor appear to indicate that Class 1 has accepted the Plan, and, therefore, it appears that this requirement is satisfied.
1129(a)(11): This provision requires Debtor to demonstrate that "[c]onfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization."
Cash on hand required on effective date: $50k (administrative fees) + $1,729.31 (Class 3) + $77.54 (Class 6) + $665.50 (Class 7) + $50k (priority unsecured) + $190 (general unsecured) = $102,662.35. Confirmation brief says Debtor has about $100k, however, there is no evidence from Debtor to support this figure.
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Monthly plan payments required: $2,323.92 (Class 1) + $297.18 (Class 2) + $3,244.67 (Class 8) + $1,192.37 (priority unsecured) = $7,058.14.
General unsecured estimated at $789.90
Priority tax claims (other than Class 8) estimated at $4,519.48
Total monthly plan payment estimated at $12,367.52
1129(a)(12): Section II.B.I. of the Plan indicates that all bankruptcy fees have been paid or will be paid by the effective date of the plan.
1129(a)(13): This provision is inapplicable to the instant case.
1129(a)(14): This provision is inapplicable to the instant case.
1129(a)(15): No unsecured creditor objected to the Plan, and, therefore, this provision is inapplicable in the instant case.
1129(a)(16): This provision is inapplicable to the instant case.
Tentative Ruling:
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The Court is inclined to CONTINUE the hearing for detailed evidence from Debtor as to ability to make effective date and ongoing plan payments. In addition, as to cramdown on Class 2, Debtor will need to supplement its analysis as it appears paying arrears over five years without interest does not satisfy the fair and equitable requirement of 11 U.S.C. § 1129(b)(2).
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
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From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20,
2/4/20
Also #15 EH
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
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MOVANT: MANSOUR HOSSEIN BARGHI
Also #18 & #19 EH
Docket 23
- NONE LISTED -
Debtor(s):
Dimlux LLC Represented By
Donald Beury Donald Beury
Movant(s):
Mansour Hossein Barghi Represented By Fari B Nejadpour
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EH
Docket 31
- NONE LISTED -
Debtor(s):
Dimlux LLC Represented By
Donald Beury Donald Beury
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From: 3/24/20 Also #17 & #18 EH
Docket 4
- NONE LISTED -
Debtor(s):
Dimlux LLC Represented By
Donald Beury Donald Beury
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From: 12/3/19, 2/25/20 Also #21 - #30
EH
Docket 199
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
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N.A. D/B/A California Bank & Trust Also #20 - #30
EH
Docket 278
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
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Also #20 - #30
EH
Docket 288
On April 12, 2019, Woodcrest Ace Hardware, Inc., 9 Fingers, Inc., P&P Hardware, Inc., Riverside Ace Hardware, Inc., and Wildomar Ace Hardware, Inc. (collectively, "Debtors") filed their Chapter 11 voluntary petitions. The following procedural events have occurred so far in the cases:
-On May 2, 2019, the Court approved Debtors’ use of cash collateral on an interim basis.
-On May 28, 2019, the Court set a claims bar date of July 29, 2019.
-On May 31, 2019, the Court entered a scheduling order, setting a claim objection deadline of October 31.
-On June 13, 2019, the Court denied Debtors’ motion to substantively consolidate their cases.
-On June 19, 2019, the Court extended Debtors’ authorization to use cash collateral on an interim basis.
-On June 21, 2019, the Court ordered adequate protection payments be made to Ford Motor Credit Company LLC.
-On June 28, 2019, the Court authorized the employment of Brass Tax Ryder Professional Group, Inc. as bankruptcy accountant.
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-On July 12, 2019, the Court ordered joint administration of Debtors’ cases.
-On August 16, 2019, the Court authorized the employment of Rosenstein & Associates as bankruptcy counsel.
-On August 30, 2019, the Court ordered the rejection of a vehicle lease with Financial Services Vehicle Trust.
-On September 12, 2019, the Court extended Debtors’ authorization to use cash collateral.
-On October 2, 2019, the Court approved Debtors’ use of their cash management system.
-On October 29, 2019, the Court extended the deadline for Debtors to object to the claim of On Deck Capital Inc. until January 31.
-On October 31, 2019, the Court extended the deadline for Debtors to object to the claim of Zions Bancorporation, N.A. ("Creditor") until January 31.
-On November 1, 2019, the Court entered a scheduling order, setting: (1) a deadline of November 15 for Debtors to file their disclosure statement and plan; (2) a deadline of January 31 for Debtors to have their disclosure statement approved; and (3) a deadline of April 17 for Debtors to have their plan confirmed.
-On November 4, 2019, the Court granted Ford Motor Credit Company LLC relief from the automatic stay.
-On December 12, 2019, the Court extended Debtors’ authorization to use cash collateral, and approved a stipulation for claim treatment between Debtors and Kabbage, Inc.
-On January 16, 2020, the Court approved Debtors’ disclosure statement.
-On January 30, 2020, the Court entered three orders: (1) an order extending the deadline for plan confirmation until March 31, 2020; (2) an order extending the deadline to object to the claim of Creditor until February 18, 2020; and (3) an order extending the deadline to object to the claim of Bond Street Servicing, LLC until April 30, 2020.
-On January 31, 2020, the Court entered an order extending the deadline to object to
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the claim of On Deck Capital, Inc. until April 30, 2020.
-On February 18, 2020, the Court entered an order extending the deadline to object to the claim of Creditor until March 2, 2020.
-On February 26, 2020, the Court entered an order extending the use of cash collateral until March 31, 2020.
-On March 3, 2020, the Court approved Debtors’ application to have its objection to the claim of Creditor. heard on twenty-nine days’ notice rather than thirty days.
On March 6, 2020, Rosenstein & Associates ("Counsel") and Brass Tax Ryder Professional Group, Inc. ("Accountant") filed motions for approval of interim professional fees and expenses. Counsel requests an aggregate of $204,033.12 for services rendered up through December 31, 2019. Accountant requests $11,506.35 for services rendered up through December 31, 2019.
As a preliminary matter, 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, Counsel & Accountant did not comply with the above rule, although there clearly was communication between Counsel and Accountant, and Counsel appears to have drafted and filed Accountant’s fee application.
The Court has reviewed the application of Accountant and finds the compensation requested to be generally reasonable pursuant to the factors outlined in 11 U.S.C.
§ 330(a). The Court further notices that notice and service appear proper, and the Court has not received any opposition to the requested fees, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
Having reviewed Counsel’s application for compensation, however, the Court notes that the manner in which the fee application was prepared significantly hampers the
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Court’s ability to review the fees for reasonableness. As an example, the Court will select a single billing entry which exemplifies the difficulty in assessing the fees requested. On November 14, 2019, there is a billing entry for timekeeper JLH in the amount of 1.2 hours that states the following:
Complete draft of plan and conference with RBR regarding the same; revise draft of plan; e-mails to/from client regarding the same and e- mails to/from counsel for Wildomar landlord regarding amendment to include in plan
This 1.2 hour time entry is replicated in the billing entries of the billing statements related to each of the five debtors. The Court can conclude, by reviewing a variety of time entries, that time related to tasks relevant to all or multiple of the individual debtors has been evenly assessed against each debtor. Nevertheless, given the length of the billing statements, and the fact that many, but not all, tasks were performed for multiple or all of the debtors, Counsel’s approach of dividing time between the individual debtors, without providing an aggregate billing statement, significantly hampers the Court’s ability to review the billing entries.
Additionally, the Court notes that the time entry quoted above – as well as many of the time entries submitted -- contains substantial lumping of services provided. While the Court prefers to review time entries entry by entry, in cases where the time entries are voluminous or where an applicant has regularly submitted "lumped" time entries, the Court may review the matter more holistically. See, e.g., In re GSG Group, Inc. 502 B.R. 673, 742-43 (Bankr. S.D.N.Y. 2013) ("Courts have endorsed cutting a professional’s fees by a percentage as a practical means of trimming fat from a fee application, particularly to address problems like lumping, duplication of effort, and vague time entries.") (quotation omitted) (collecting cases); In re Baker, 374 B.R.
489, 496 (Bankr. E.D.N.Y. 2007) ("Across the board percentage cuts in the fees claimed are routinely utilized so that courts do not misuse their time setting forth item-by-item findings concerning what be countless objections to individual billing items, when the billing records are voluminous, as they are in this dispute.") (quotation omitted) (collecting cases); In re A.W. Logging, Inc., 356 B.R. 506, 518 (Bankr. D. Idaho 2006) ("Because Beeman’s
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itemization of services displays a general lack of adequate detail, the Court has determined that an overall reduction, as opposed to an entry-by-entry analysis, best addresses this defect." see also In re Thomas 2012 WL 1008654 (9th Cir. 2012) (approving percentage reduction). Here, because the billing entries provided do not allow for an adequate review of the reasonableness of the fees requested, the Court will either need supplemental evidence allowing for an entry-by-entry review, or can consider the application under a more holistic standard. Given that significant contested matters remaining outstanding, however, the Court does not believe that a holistic review is appropriate at this time.
Finally, while not an issue throughout the billing statements, the Court notes that the hourly billing rate for the entry quoted above has been increased from the normal $350/hour to $1,108.33/hour.
The Court is inclined to approve the requested fees and expenses of Accountant in their entirety, and CONTINUE the hearing on the motion to approve the fees and expenses of Counsel for a resolution of the outstanding substantive issues.
APPEARANCES REQUIRED.
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
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Also #20 - #30
EH
Docket 287
On April 12, 2019, Woodcrest Ace Hardware, Inc., 9 Fingers, Inc., P&P Hardware, Inc., Riverside Ace Hardware, Inc., and Wildomar Ace Hardware, Inc. (collectively, "Debtors") filed their Chapter 11 voluntary petitions. The following procedural events have occurred so far in the cases:
-On May 2, 2019, the Court approved Debtors’ use of cash collateral on an interim basis.
-On May 28, 2019, the Court set a claims bar date of July 29, 2019.
-On May 31, 2019, the Court entered a scheduling order, setting a claim objection deadline of October 31.
-On June 13, 2019, the Court denied Debtors’ motion to substantively consolidate their cases.
-On June 19, 2019, the Court extended Debtors’ authorization to use cash collateral on an interim basis.
-On June 21, 2019, the Court ordered adequate protection payments be made to Ford Motor Credit Company LLC.
-On June 28, 2019, the Court authorized the employment of Brass Tax Ryder Professional Group, Inc. as bankruptcy accountant.
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-On July 12, 2019, the Court ordered joint administration of Debtors’ cases.
-On August 16, 2019, the Court authorized the employment of Rosenstein & Associates as bankruptcy counsel.
-On August 30, 2019, the Court ordered the rejection of a vehicle lease with Financial Services Vehicle Trust.
-On September 12, 2019, the Court extended Debtors’ authorization to use cash collateral.
-On October 2, 2019, the Court approved Debtors’ use of their cash management system.
-On October 29, 2019, the Court extended the deadline for Debtors to object to the claim of On Deck Capital Inc. until January 31.
-On October 31, 2019, the Court extended the deadline for Debtors to object to the claim of Zions Bancorporation, N.A. ("Creditor") until January 31.
-On November 1, 2019, the Court entered a scheduling order, setting: (1) a deadline of November 15 for Debtors to file their disclosure statement and plan; (2) a deadline of January 31 for Debtors to have their disclosure statement approved; and (3) a deadline of April 17 for Debtors to have their plan confirmed.
-On November 4, 2019, the Court granted Ford Motor Credit Company LLC relief from the automatic stay.
-On December 12, 2019, the Court extended Debtors’ authorization to use cash collateral, and approved a stipulation for claim treatment between Debtors and Kabbage, Inc.
-On January 16, 2020, the Court approved Debtors’ disclosure statement.
-On January 30, 2020, the Court entered three orders: (1) an order extending the deadline for plan confirmation until March 31, 2020; (2) an order extending the deadline to object to the claim of Creditor until February 18, 2020; and (3) an order extending the deadline to object to the claim of Bond Street Servicing, LLC until April 30, 2020.
-On January 31, 2020, the Court entered an order extending the deadline to object to
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the claim of On Deck Capital, Inc. until April 30, 2020.
-On February 18, 2020, the Court entered an order extending the deadline to object to the claim of Creditor until March 2, 2020.
-On February 26, 2020, the Court entered an order extending the use of cash collateral until March 31, 2020.
-On March 3, 2020, the Court approved Debtors’ application to have its objection to the claim of Creditor. heard on twenty-nine days’ notice rather than thirty days.
On March 6, 2020, Rosenstein & Associates ("Counsel") and Brass Tax Ryder Professional Group, Inc. ("Accountant") filed motions for approval of interim professional fees and expenses. Counsel requests an aggregate of $204,033.12 for services rendered up through December 31, 2019. Accountant requests $11,506.35 for services rendered up through December 31, 2019.
As a preliminary matter, 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, Counsel & Accountant did not comply with the above rule, although there clearly was communication between Counsel and Accountant, and Counsel appears to have drafted and filed Accountant’s fee application.
The Court has reviewed the application of Accountant and finds the compensation requested to be generally reasonable pursuant to the factors outlined in 11 U.S.C.
§ 330(a). The Court further notices that notice and service appear proper, and the Court has not received any opposition to the requested fees, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
Having reviewed Counsel’s application for compensation, however, the Court notes that the manner in which the fee application was prepared significantly hampers the
2:00 PM
Court’s ability to review the fees for reasonableness. As an example, the Court will select a single billing entry which exemplifies the difficulty in assessing the fees requested. On November 14, 2019, there is a billing entry for timekeeper JLH in the amount of 1.2 hours that states the following:
Complete draft of plan and conference with RBR regarding the same; revise draft of plan; e-mails to/from client regarding the same and e- mails to/from counsel for Wildomar landlord regarding amendment to include in plan
This 1.2 hour time entry is replicated in the billing entries of the billing statements related to each of the five debtors. The Court can conclude, by reviewing a variety of time entries, that time related to tasks relevant to all or multiple of the individual debtors has been evenly assessed against each debtor. Nevertheless, given the length of the billing statements, and the fact that many, but not all, tasks were performed for multiple or all of the debtors, Counsel’s approach of dividing time between the individual debtors, without providing an aggregate billing statement, significantly hampers the Court’s ability to review the billing entries.
Additionally, the Court notes that the time entry quoted above – as well as many of the time entries submitted -- contains substantial lumping of services provided. While the Court prefers to review time entries entry by entry, in cases where the time entries are voluminous or where an applicant has regularly submitted "lumped" time entries, the Court may review the matter more holistically. See, e.g., In re GSG Group, Inc. 502 B.R. 673, 742-43 (Bankr. S.D.N.Y. 2013) ("Courts have endorsed cutting a professional’s fees by a percentage as a practical means of trimming fat from a fee application, particularly to address problems like lumping, duplication of effort, and vague time entries.") (quotation omitted) (collecting cases); In re Baker, 374 B.R.
489, 496 (Bankr. E.D.N.Y. 2007) ("Across the board percentage cuts in the fees claimed are routinely utilized so that courts do not misuse their time setting forth item-by-item findings concerning what be countless objections to individual billing items, when the billing records are voluminous, as they are in this dispute.") (quotation omitted) (collecting cases); In re A.W. Logging, Inc., 356 B.R. 506, 518 (Bankr. D. Idaho 2006) ("Because Beeman’s
2:00 PM
itemization of services displays a general lack of adequate detail, the Court has determined that an overall reduction, as opposed to an entry-by-entry analysis, best addresses this defect." see also In re Thomas 2012 WL 1008654 (9th Cir. 2012) (approving percentage reduction). Here, because the billing entries provided do not allow for an adequate review of the reasonableness of the fees requested, the Court will either need supplemental evidence allowing for an entry-by-entry review, or can consider the application under a more holistic standard. Given that significant contested matters remaining outstanding, however, the Court does not believe that a holistic review is appropriate at this time.
Finally, while not an issue throughout the billing statements, the Court notes that the hourly billing rate for the entry quoted above has been increased from the normal $350/hour to $1,108.33/hour.
The Court is inclined to approve the requested fees and expenses of Accountant in their entirety, and CONTINUE the hearing on the motion to approve the fees and expenses of Counsel for a resolution of the outstanding substantive issues.
APPEARANCES REQUIRED.
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
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EH
Docket 291
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also #20 - #30
EH
Docket 204
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20 Also #20 - #30
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20 Also #20 - #30
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20 Also #20 - #30
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20 Also #20 - #30
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20 Also #20 - #29
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Florencio Secundino Salazar Represented By Marlin Branstetter
Joint Debtor(s):
Teresa Valles Represented By Marlin Branstetter
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 18
- NONE LISTED -
Debtor(s):
Patricia Giselle Caro Represented By Daniel Gamez
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Jose Antonio Pulido Gutierrez Represented By Melissa A Raskey
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
EH
Docket 34
- 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):
Charles W Daff (TR) Pro Se
11:00 AM
Docket 464
- NONE LISTED -
Debtor(s):
Abel Solorzano Represented By Byron Z Moldo Howard Camhi
Joint Debtor(s):
Irma Solorzano Represented By Byron Z Moldo Howard Camhi
Trustee(s):
Howard B Grobstein (TR) Represented By Ivan L Kallick
11:00 AM
Docket 61
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 Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,950.00
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):
Katiria Enriquez Represented By
Phillip Myer - SUSPENDED -
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 31
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: $ 1,748.36
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):
Marco Vicente Perez Represented By Jonathan R Preston
Joint Debtor(s):
Anna Nicole Perez Represented By Jonathan R Preston
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 24
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: $ 1,820.00 Trustee Expenses: $ 132.65
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):
Bryan Lee Tendal Duke Represented By
H. Christopher Heritage
Joint Debtor(s):
Gary Thomas Hackett Represented By
H. Christopher Heritage
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 13
On December 10, 2019, Ramesses Alamillo ("Debtor") filed a Chapter 7 voluntary petition. On March 4, 2020, Trustee filed a motion for extension of time to file a complaint objecting to discharge. The basis for Trustee’s motion is that Trustee received an anonymous e-mail stating that "Debtor may have been hiding assets located at different storage locations. On February 28, 2020, Trustee withdrew the report of no-assets, and is now requesting a three-month extension of the deadline to object to discharge.
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
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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, Trustee received certain information -- evidence that Debtor may have been hiding assets -- after the meeting of creditors had been conducted and only a short period of time before the deadline to object to discharge. Because Trustee did not have sufficient time between the receipt of this information and the deadline to object to discharge to adequately investigate the issue, cause exists to extend the deadline. See, e.g., Hill v. Snyder, 919 F.3d 1081 (8th Cir. 2019).
Moreover, the Court deems Debtor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h).
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The Court is inclined to GRANT the motion, extending the deadline to object to Debtor’s discharge until June 16, 2020.
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):
Ramesses F. Alamillo Represented By William E Windham
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
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Docket 20
On November 22, 2019, Hasan Elmehrek & Nagla Swedan ("Debtors") filed a Chapter 7 voluntary petition. The meeting of creditors was originally set for December 23, 2019. The meeting of creditors has been continued on five occasions.
On February 20, 2020, UST filed a motion for extension of time to file a complaint objecting to discharge or a motion to dismiss the case. The basis for UST’s motion is that, at the second meeting of creditors, Debtors testified that approximately three months before filing bankruptcy, they "received" a $50,000 deposit into an Egyptian bank account. UST asserts that it subsequently requested financial documentation from Debtors, but Debtors have not adequately responded to the request and did not appear at a continued meeting of creditors.
FED. R. BANKR. P. Rule 1017(e)(1) states:
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Except as otherwise provided in § 704(b)(2), a motion to dismiss a case for abuse under § 707(b) or (c) may be filed only within 60 days after the first date set for the meeting of creditors under § 341(a), unless, on request filed before the time has expired, the court for cause extends the time for filing the motion to dismiss.
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 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
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
the movant did not have knowledge of those facts in time to permit an objection. The motion shall be filed promptly after the movant
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discovers the facts on which the objection is based.
Here, Debtor’s delay in providing the requested information constitutes sufficient cause to extend the deadlines. 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, extending the deadlines to file a motion to dismiss the case and a complaint objecting to discharge until April 30, 2020.
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):
Hasan Elmehrek Represented By Keith Q Nguyen
Joint Debtor(s):
Nagla Swedan Represented By Keith Q Nguyen
Movant(s):
United States Trustee (RS) Represented By Everett L Green
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Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 44
On January 23, 2019, Timothy & Esmeralda Aitken ("Debtors") filed a Chapter 7 voluntary petition. On May 1, 2019, Debtors filed, inter alia, an amended Schedule C that included an exemption in "[e]quity in real property at 6919 Elmwood Rd., San Bernardino transferred in 2017" in the amount of $28,000.
The meeting of creditors has been continued on twelve occasions. On March 3, 2020, Trustee filed a complaint against Alicia Aitken to recover a fraudulent transfer.
Trustee asserts that it believes, if the transfer is avoided, that it can object to Debtors’ claim of exemption pursuant to 11 U.S.C. § 522(g)
FED. R. BANKR. P. Rule 4003(b)(1) states:
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Except as provided in paragraphs (2) and (3), a party in interest may file an objection to the list of property claim as exempt within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. The court may, for cause, extend the time for filing objections if, before the time to object expires, a party in interest filed a request for an extension.
Here, the meeting of creditors has not yet concluded and, therefore, the deadline to object to a claimed exemption has not yet passed and Trustee’s motion is timely. The Court has reviewed the contents of Trustee’s motion and finds that Trustee’s has demonstrated sufficient cause to extend the deadline to object to Debtors’ claimed exemptions.
Furthermore, the Court notes that § 522(b) allows a debtor to claim exemptions in "property of the estate." 11 U.S.C. § 541(a)(3) provides that property of the estate includes: "[a]ny interest in property that the trustee recovers under section 329(b), 363(n), 543, 550, 553, or 723 of this title." Therefore, until or unless Trustee recovers the subject property/equity, that interest would not be property of the estate and could not be exempted by Debtors. As a result, the Court notes that Debtors’ claimed exemption was premature and the effective date of that exemption is not the date it was claimed. See, e.g., In re Kuhnel, 495 F.3d 1177, 1182 (10th Cir. 2007) ("[T]he nature of § 522(g) is such that it precludes exemptions in recovered property even beyond the time limit imposed by Rule 4003(b)."); see also In re Lee, 889 F.3d 639 (9th Cir. 2018) (fraudulent transfer complaint sufficient to satisfy Rule 4003 deadline).
Finally, the Court deems Debtor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h).
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The Court is inclined to GRANT the motion, extending the deadline to object to Debtor’s claimed until the later of October 3, 2020, or thirty days after entry of an order or judgment avoiding the subject transfer.
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 Mark Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Howard B Grobstein (TR) Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
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Docket 41
- NONE LISTED -
Debtor(s):
Blanca Aguirre Pro Se
Movant(s):
Blanca Aguirre Pro Se
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Kevin T Lafky
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EH
Docket 75
On January 5, 2018, Charlie Parker ("Debtor") filed a Chapter 7 voluntary petition. Schedule A identified certain real property located at 26918 Cape Kasilof Cir., Kasiloff, AK 99610 (the "Property"). Schedule A identified the value of the Property as $300,000, and appears to identify Debtor as the 50% owner of the Property.
Schedule C purported to exempt the Property in full. On February 13, 2018, Debtor amended his claimed exemption in the Property, decreasing the claimed exemption from $103,000 to $0. On April 16, 2018, Debtor received a discharge. On July 18, 2018, Debtor amended his schedules again, 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 March 11, 2020, Trustee filed a motion for an order: (1) approving sale of real 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 Brett Tuohy & Vito Ungaro (the "Purchasers") for $175,000. Proposed payments from the proceeds include: (1)
$10,500 for real estate commission; (2) $3,500 for escrow charges and fees; (3)
$120,000 for secured claim of Wells Fargo (4) $10,774.38 for property taxes; (5)
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$3,435.50 for insurance; and (6) $13,395.06 to co-owner (Debtor’s ex-wife), leaving
$13,395.06 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, in the form of a declaration of a real estate salesperson, although said declaration does not contain much detail. The Court notes the following three issues related to the § 363(b)(1) standard:
Debtor scheduled the Property at $300,000, however, the proposed sale is for
$175,000 a significant lower figure. The evidence submitted in support of the motion is somewhat vague regarding the extent and nature of the attempted marketing of the Property.
While the motion indicates that the sale will generate $13,395.06 in proceeds for the estate, it would appear that such proceeds are likely to be entirely used for administrative claims. While this Court does approve sales that do not generate any divided for unsecured creditors in the appropriate circumstances,
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the Court further notes the final issue:
Given the previous sale of real property in December 2018, which generated
$26,977.79, and the compromise reached with Debtor’s ex-spouse in January 2019, which generated $35,677, and noting that unsecured claims in this case
appear to total $40,080.12, it would appear that Trustee’s pursuit of the instant sale may have actually resulted in a decrease in divided for unsecured creditors. The Court is unable to ascertain the timeline of the steps that resulted in this sale, however, due to the vagueness of the evidence regarding the marketing of the Property.
The Court additionally notes that while Trustee has not requested authority to sell an interest of a co-owner, the co-owner here has filed a declaration consenting to the proposed sale. Finally, while not at issue at the present time, the Court notes that it typically does not allow trustees to collect commission on amounts distributed by a trustee, but attributable to an interest of a co-owner.
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;
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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 sale price exceeds the aggregate value of the liens encumbering 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).
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 $10,500) and finds such compensation to be reasonable and customary.
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).
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Trustee to address the issues raised in the first subsection of the discussion section.
APPEARANCES REQUIRED.
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
12:00 PM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Savannah Marie Guadalupe Flores Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:20-01013 Iwanowski et al v. Santean-Whippie
EH
Docket 1
- NONE LISTED -
Debtor(s):
Andrea Linda Santean-Whippie Pro Se
Defendant(s):
Andrea Linda Santean-Whippie Pro Se
Plaintiff(s):
Kirk Iwanowski Represented By Summer M Shaw
Jacqueline Katz Represented By Summer M Shaw
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
From: 3/25/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A Crowder
Defendant(s):
Marc Anthony Capoccia Pro Se
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:19-01174 Navarro v. Malkin
From: 3/4/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Arlene M Malkin Represented By Summer M Shaw
Defendant(s):
Arlene Malkin Represented By Summer M Shaw
Plaintiff(s):
Norma Navarro Represented By Shalini Dogra
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:18-01227 Anderson, Chapter 7 Trustee v. Wang et al
From: 9/18/19, 12/11/19, 3/25/20 EH
Docket 13
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Ming Chung Wang Pro Se
LiLi Chang Represented By
Lawrence B Yang
JWLC Imports, Inc. Pro Se
2:00 PM
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01222 Anderson, Chapter 7 Trustee v. Bobby Lee Associates, LLC
From: 1/16/19, 4/17/19, 6/12/19, 9/18/19, 10/2/19, 12/11/19, 3/25/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Bobby Lee Associates, LLC Represented By Keith S Knochel
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01213 Pringle v. JPMorgan Chase Bank, National Association dba Chas
Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) From: 1/9/19, 3/13/19, 6/5/19, 9/4/19, 11/6/19
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
JPMorgan Chase Bank, National Represented By
Christopher O Rivas
Chase Bank USA, National Represented By Christopher O Rivas
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
2:00 PM
Adv#: 6:18-01242 Forniss et al v. Morales et al
From: 3/6/19, 3/13/19, 5/22/19, 8/28/19, 12/4/19, 12/18/19, 1/8/20, 3/11/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Defendant(s):
Stephan Richard Morales Pro Se
Diane Forniss Morales Pro Se
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Plaintiff(s):
Alfonso Forniss Represented By Fritz J Firman
Stephen Forniss Represented By
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Trustee(s):
Fritz J Firman
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20
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) Represented By Monica Y Kim
2:00 PM
Adv#: 6:19-01100 Issa v. Delaney et al
J. Michael Issa against Ryan Delaney, John Wong, DOES 1 through 10, inclusive. (Charge To Estate)($350.00) for: 1) Breach of Fiduciary Duty; and Negligence [Demand for Jury Trial] Nature of Suit: (14 (Recovery of money/property - other)) (Ignatuk, Joseph)
From: 9/17/19, 10/15/19, 2/4/20, 3/10/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Ryan Delaney Represented By Paul A Reynolds
John Wong Represented By
David P Bleistein Lisa Hiraide
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
2:00 PM
Adv#: 6:19-01122 Whitmore v. Labor Commissioner of the State of California
From: 11/6/19, 1/15/20, 3/25/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Labor Commissioner of the State of Represented By
Melvin Yee
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#: 6:19-01050 Baker et al v. Mount
Docket 51
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
EH
Docket 28
On July 25, 2019, Jesse & Tina Shelby ("Debtors") filed a Chapter 7 voluntary petition.
On September 20, 2019, Jesse Shelby ("Plaintiff") filed a complaint against Sofi Lending Corp. seeking discharge of student loans pursuant to 11 U.S.C. § 523(a)(8). On November 6, 2019, default was entered against Defendant. On November 11, 2019, Plaintiff filed a motion for default judgment, but subsequently withdrew the motion. On November 21, 2019, Plaintiff filed an amended complaint. On January 7, 2020, the Court entered default on Plaintiff’s amended complaint. On March 9, 2020, Plaintiff filed the instant motion for default judgment.
Plaintiff’s complaint relates to student loans taken out to pay for the education of his children. Between September 2004 and June 2020, Plaintiff borrowed $292,398 in Parent Plus Education Loans covering three different children. Plaintiff subsequently refinanced the loans with Defendant in 2018. Pursuant to the declaration of Plaintiff,
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Plaintiff paid a total of $167,725.84 towards the student loans between 2014 and March 2019. In March 2019, Plaintiff was hospitalized and diagnosed with "anxiety and depression with psychotic features," retired from his jobs and stopped making student loans payments.
Prior to March 2019, Debtors ran two business – Windowwashers, LLC and Lightborne & Riverwick, LLC. Debtors appear to state that the income from those two businesses, combined with retirement income, used to total $180,000 a year. At the time this bankruptcy was filed, after closing the two businesses above, Debtors reported annual income of $69,148.44 – predominantly from retirement income.
While the evidence provided by Plaintiff regarding the amount of outstanding student loan debt is somewhat inconsistent, the remaining debt is very substantial, and the motion for default judgment identifies monthly payments of $3,186.04.
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
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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.
The Court notes that, pursuant to docket number 19, and described in more detail in the declaration of Plaintiff’s counsel attached to the instant motion, Plaintiff appears to have served the complaint to Defendant in a manner which satisfies FED. R. BANKR.
P. Rule 7004.
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 a single cause of action, 11 U.S.C. § 523(a)(8). Section 523(a)(8) provides:
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A discharge under section 727, 1141, 1192, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
(8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and debtor’s dependents, for –
(A)(i) an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or
(ii) an obligation to repay funds received as an educational benefit, scholarship, or stipend; or
any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual;
Brunner v. N.Y State Higher Educ. Servs. Corp., 831 F.2d 395 (2nd Cir. 1987) remains the guiding case for interpreting § 523(a)(8) in the Ninth Circuit. A leading bankruptcy treatise has summarized the test as follows:
Under the Brunner test, a three-prong test for undue hardship requires that (1) the debtor cannot maintain a minimal standard of living based on current earnings and expenses, if forced to repay the student loan;
additional circumstances exist indicating that the debtor’s state of affairs will continue for a significant portion of the repayment period of the loan; and (3) the debtor has made a good faith effort to repay the loan. In determining whether the debtor has met the first prong, the
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court examines the debtor’s standard of living, with a view toward ascertaining whether the debtor has tried to minimize the expenses of the debtor and the debtor’s dependents. To satisfy the second prong, the debtor must show that circumstances indicate a "certainty of hopelessness," not merely a present inability to fulfill the debtor’s financial commitments. The third prong, good faith, requires that the debtor have energetically sought to pay and the debtor cannot be blamed for his or her financial position.
GINSBERG & MARTIN ON BANKRUPTCY § 11.06[L][2] (5th ed. 2019) (collecting cases) (footnotes omitted).
Regarding the first prong, the Ninth Circuit has previously stated that:
The first prong of the Brunner test requires the debtor to prove that she cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if forced to repay the loans. To meet this requirement, the debtor must demonstrate more than simply tight finances. In defining undue hardship, courts require more than temporary financial adversity, but typically stop short of utter hopelessness.
In re Rifino, 245 F.3d 1083 1088 (9th Cir. 2001) (citations and quotations omitted). Here, the evidence submitted by Debtors identifies $69,148.44 in annual income. If forced to repay the student loans at issue, Plaintiff asserts that the annual student loan payment would be $38,232.48, leaving only
$30,915.96 in remaining income. Based upon the schedules filed in Debtors’ bankruptcy case, the Court concludes that this income would be inadequate to establish a minimal standard of living.
Regarding the second prong, however, the Court is not convinced that the allegations in the complaint rise to the level of establishing "a certainty of
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hopelessness." The Court notes that Plaintiff has provided the Court with evidence of a psychiatric diagnosis of anxiety and depression, but filed bankruptcy only four months after the diagnosis. Given these circumstances, especially where the evidence appears to be limited to a one-time diagnosis with no follow-up, the Court cannot conclude that Plaintiff has satisfied the relatively onerous test imposed by the second prong. See, e.g., In re Carnduff, 367 B.R. 120, 128 (B.A.P. 9th Cir. 2007) (circumstances need to "demonstrate insurmountable barriers to the debtor’s financial recovery and ability to repay the student loan now and for a substantial portion of the loan’s repayment period.").
Regarding the third prong, the Court concludes that the evidence submitted establishes that Plaintiff has made substantial payments toward the student loans at issue. That evidence, however, is insufficient, on its own, to satisfy the third prong. See, e.g., In re Mason, 464 F.3d 878, 884 (9th Cir. 2006) ("Good faith is measured by the debtor’s efforts to obtain employment, maximize income, and minimize expenses. Courts will also consider a debtor’s effort – or lack thereof – to negotiate a repayment plan.") (citations and quotations omitted). Here, Debtors filed bankruptcy approximately four months after Plaintiff’s psychiatric diagnosis and the schedules filed in this case include expenses (such as charitable contributions, a travel trailer payment, and relatively high transportation, utilities, and housing costs) that clearly exceed a minimal standard of living.
In light of the substantial amount owing on the student loan debt, the Court finds that it is probable that, upon submission of further evidence, Plaintiff could establish an entitlement to a partial discharge of the student loan debt. See, e.g., In re Saxman 325 F.3d 1168, 1173 (9th Cir. 2003) ("We continue to find Hornsby to be the better reasoned opinion, and conclude that bankruptcy courts may exercise their equitable authority under 11 U.S.C. § 105(a) to partially discharge student loans."). After reviewing the present record, however, the Court is forced to conclude that Plaintiff has not sufficiently alleged facts which would satisfy the relatively onerous burden imposed by § 523(a)(8).
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The Court is inclined to CONTINUE the matter for Plaintiff to provide further evidence regarding: (1) his future ability to secured gainful employment; (2) Debtors’ ability to further reduce expenses; (3) Plaintiff’s attempts to negotiate repayment options with Defendant; and (4) a reasonable student loan payment that would not impose an undue hardship on Plaintiff.
APPEARANCES REQUIRED.
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Movant(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Trustee(s):
Steven M Speier (TR) Pro Se
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Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
From: 1/15/20, 3/25/20 Also #25
EH
Docket 17
- NONE LISTED -
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
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Trustee(s):
Steven M Speier (TR) Pro Se
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Adv#: 6:18-01062 Khalil v. Bastorous et al
EH
Docket 104
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff") filed a complaint against Mark Bastorous & Bernadette Shenouda, (collectively, "Defendants"; individually, "Bastorous" and "Shenouda") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss.
Plaintiff subsequently amended his complaint on May 3, 2018. On June 4, 2018, Defendants filed a second motion to dismiss. Ultimately, on October 22, 2018, the Court granted the motion, requiring Plaintiff to provide more detail to meet the heightened pleading requirements for fraud. The next day, Plaintiff filed a second amended complaint. On November 6, 2018, Defendants filed a third motion to dismiss. On January 2, 2019, the Court granted the motion, requiring Plaintiff to clearly articulate the state law basis of the debt if Plaintiff was going to request a judgment which included monetary and punitive damages.
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On January 11, 2019, Plaintiff filed his third amended complaint. On January 25, 2019, Defendants filed another motion to dismiss. On February 26, 2019, Plaintiff filed his opposition. On April 10, 2019, the Court entered an order denying the motion to dismiss the third amended complaint. That same day, Defendants filed their answers.
On June 12, 2019, the Court held the first status conference after the filing of Defendants’ answers. Plaintiff did not appear at the status conference. On June 17, 2019, the Court issued an order to show cause why the case should not be dismissed for lack of prosecution. On July 15, 2019, twelve days after the response deadline and only two days before hearing, Plaintiff filed his opposition; the Court withdrew the order to show cause at the hearing.
On June 20, 2019, the Court entered a scheduling order. Among the provisions in the scheduling order were the following: (1) a discovery cut-off of November 30, 2019;
a deadline to file a joint status report of January 8, 2020; and (3) the continuation of the status conference to January 15, 2020.
On December 6, 2019, Plaintiff filed a motion to compel the deposition of Bastorous. On December 30, 2019, Defendants filed a motion to compel the deposition of Plaintiff. Both motions were opposed.
On January 15, 2020, the Court held a continued status conference. For the second time in a row, Plaintiff did not appear and did not file any status report. The Court issued another order to show cause why the case should not be dismissed for lack of prosecution (the "OSC") [Dkt. No. 82]. On January 24, 2020, Plaintiff filed a late response to the OSC. On January 29, 2020, Defendants filed their reply. On February 5, 2020, the Court held a hearing on the OSC. Neither Plaintiff nor an attorney representing him appeared. For the reasons stated on the record at the hearing of February 5, the Court subsequently dismissed the action.
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On February 14, 2020, Plaintiff filed a motion for leave to file over-length brief and a motion to reconsider the dismissal of the action. The Court also notes that Plaintiff filed a substitution of attorney that same day indicating that Larry Noe ("Noe") was now the attorney of record for the action. On March 18, 2020, Defendants filed an opposition to the motion to reconsider.
Authorization to File Over-Length Brief
While Plaintiff has filed a motion requesting authority to file an over-length, the motion itself does not any contain any legal citation or argument relating to the filing of over-length briefs. Additionally, the Court notes that Local Rule 9013-1(b)(1) provides that an over-length brief is a brief exceeding thirty-five pages. Here, Plaintiff not having filed a brief exceeding thirty-five pages, the brief is not over-length.
Therefore, the Court will DENY the motion.
Reconsideration
Plaintiff cites to FED. R. CIV. P. Rules 59 and 60, incorporated in bankruptcy proceedings by FED. R. BANKR. P. Rule 9023 and 9024, as the grounds for the motion to reconsider. The Court notes that Plaintiff also appears to cite a local rule of the district court that is not applicable to proceedings in this Court.
As is noted by Plaintiff, pursuant to FED. R. CIV. P. Rule 59, "[r]econsideration is appropriate if the [] court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is a
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intervening change in controlling law." School Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc. 5 F.3d 1255, 1263 (9th Cir. 1993). The second provision appears to be the only provision that Plaintiff alleges to be applicable to this case. Regarding FED. R. CIV. P. Rule 60(b), it is not exactly clear what provision of the rule Plaintiff argues is applicable to the instant case.
Violation of Due Process
Plaintiff’s first argument is that his due process rights were violated because "Defendant knowingly and intentionally delayed four days before serving it on Plaintiff’s attorney" and because the OSC only gave Plaintiff six days to file a written opposition.
The Court rejects this argument for a variety of reasons. First, as it noted by Defendants, Noe was not attorney of record for Plaintiff at the time the OSC was issued. As a result, the fact that Defendants served Noe with the OSC was simply a matter of professional courtesy, not an action required by the Court or any applicable rules. Second, the Court served Plaintiff directly with the OSC on January 18, 2020; that notice may have been ineffective, however, because Plaintiff’s address is listed as the office address of his former counsel, Wayne Suojanen, who has not been eligible to practice law since July 2019. Most importantly, however, Plaintiff was simply not deprived of notice and an opportunity to be heard. Plaintiff and Noe both filed a declaration in opposition nine days before the hearing, the Court considered both declarations, and the Court held a hearing on the OSC which Plaintiff or a representative had an opportunity to appear at. Instead, while both Plaintiff and Noe clearly had knowledge of the hearing, they both declined to appear. Neither Plaintiff nor Noe raised lack of due process in their declarations or at the OSC hearing, nor did either party request additional time to respond to the OSC. Furthermore, the Court had previously issued an earlier order to show cause warning Plaintiff that the case may be dismissed if Plaintiff failed to appear and prepare for status conferences. As a result, the Court concludes that Plaintiff was not deprived of due process. See generally Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (outlining
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balancing test for due process).
Failure to Identify Grounds for Dismissal
Next, Plaintiff argues that the basis for dismissal in the Court’s tentative ruling was not adequately identified in the OSC. Specifically, Plaintiff asserts that the tentative ruling included six grounds for dismissal, and Plaintiff asserts that only one of those grounds was identified in the OSC.
Plaintiff’s argument lacks merit. The OSC stated that it was being issued "pursuant to Local Rule 7016-1(g) and FED. R. CIV. P. Rule 16(f)(1)(B)-(C), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7016. These rules identify a variety of examples of the failure to properly prosecute a matter. The tentative ruling issue by the Court simply articulated, in factual detail, the specific ways in which Plaintiff had failed to properly prepare or participate in this proceeding. In other words, the Court’s tentative ruling simply provided a non-exhaustive list of the reasons for dismissal under FED. R. CIV. P. Rule 16(f)(1) or Local Rule 7016-1(g).
Incorrect Factual and Legal Conclusions
Plaintiff next argues that dismissal of the case was premised upon mistaken factual findings and legal conclusions. Plaintiff’s argument fails simply due to the fact that assuming, arguendo, that the factual findings and legal conclusions were incorrect, it would be insufficient to warrant reconsideration of the dismissal of the action.
Specifically, the factual findings and legal conclusions challenged by Plaintiff merely were secondary considerations in the Court’s ruling. The Court notes that Plaintiff’s heavy reliance on the Court’s tentative ruling – a document that is not actually part of the record in this case and that was simply meant to facilitate discussion at the hearing on the OSC – results in a distorted representation of the Court’s rationale in dismissing the case. Unfortunately, because Plaintiff and Noe did not actually appear at or attend the hearing on the OSC, it appears that neither party has adequate knowledge of the discussion on the record, which primarily addressed Plaintiff’s
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failure to appear at hearings or properly prosecute the case. Nevertheless, the Court will address Plaintiff’s arguments.
Plaintiff identifies two issues upon which he asserts that this Court make mistaken legal conclusions. First, Plaintiff argues that ghostwriting pleadings is permissible in certain circumstances (and, implicitly, that those circumstances are implicated here). Second, Plaintiff argues that a suspended attorney is still permitted to file documents on behalf of a client because filing documents does not constitute the practice law.
In support of the contention that ghostwriting pleadings for a pro se party is permissible, Noe cites to an opinion of the Orange County Bar Association and the California Rules of Court. While the ghostwriting of pleadings may be permissible in some instances in state court, in federal court the practice is considered unethical and sanctionable. See, e.g., LOS ANGELES LAWYER, March 2016 at pg. 12 ("Federal courts nearly unanimously condemn ghostwriting as being a form of misrepresentation to the court as well as a violation of Rule 11 and various ethical rules governing candor to the tribunal.") (collecting cases). The authority cited by Noe to the contrary is inapplicable to proceedings in this Court and does not undermine this Court’s conclusion that Noe may have committed ethical violations and sanctionable conduct.
Regarding Plaintiff’s contention that a suspended attorney is allowed to file documents on behalf of an attorney, while such a practice may not be an ethical violation, it appears to be a violate of Section 3 of the Court Manual regarding electronic filing eligibility. Regardless, the Court’s primary concern with the participation of Plaintiff’s former attorney, Wayne Suojanen, is that it is clear documents were drafted by Wayne Suojanen while he was ineligible to practice law. As one example, on July 25, 2018, Wayne Suojanen filed an opposition to a motion to dismiss. The opposition identifies Wayne Suojanen as the attorney for Plaintiff and contains significant legal analysis. At the time this document was filed, Wayne Suojanen was ineligible to practice law according to the California State Bar’s records available online. Therefore, the Court’s conclusion that Wayne Suojanen may have committed unethical or sanctionable conduct does not appear to be erroneous,
Finally, Plaintiff argues that Defendants were disingenuous in representing that they
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did not have valid contact information for Plaintiff. Plaintiff’s argument on this point is, at best bizarre. Plaintiff appears to argue that Defendants have had Plaintiff’s contact information for several years, and, therefore, should have been aware of how to contact Plaintiff. Additionally, Plaintiff offers an e-mail from Wayne Suojanen in November 2019 which states that the old contact information for Plaintiff is no longer "good" (seemingly undermining the argument in the preceding sentence) and inviting Defendants to search FastPeopleSearch.com for possible phone numbers. This evidence is not remotely sufficient to establish that Plaintiff properly provided Defendants with valid contact information.
In accordance with the foregoing, the Court is unpersuaded that any of the alleged factual or legal errors raised by Plaintiff have merit. More importantly, none of the points addressed above related to the core basis of dismissal of the action – that Plaintiff failed to properly participate in or prosecute this action.
Failure to Consider Lesser Remedies
Finally, Plaintiff argues that the Court should have imposed less severe sanctions, such as payment of attorney fees. Plaintiff cites the factors outlined by the Ninth Circuit in Thompson v. Housing Authority of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986), although Plaintiff does not apply those factors to this case. The sentence before the Ninth Circuit outlined factors to be considered, however, the Ninth Circuit stated: "[w]e have repeatedly upheld the imposition of the sanction of dismissal for failure to comply with pretrial procedures mandated by local rules and court orders." Id. In fact, in Thompson, the following facts led to the district court’s dismissal of the action, and the Ninth Circuit summary affirmance of that dismissal: (a) Plaintiff was unprepared at three pretrial conferences; and (b) Plaintiff failed to properly conduct discovery and failed to seek an extension of the discovery deadline.
In this case, Plaintiff failed to appear or prepare a status report at the two most recent status conferences. After the first failure, the Court issued an order to show cause why the case should not be dismissed, which was ultimately withdrawn by the Court.
Plaintiff also failed to conduct discovery in a timely manner and did not seek an extension of the discovery deadline. Essentially, the facts in this case are rather similar
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to the facts that led to dismissal in Thompson v. Housing Authority of City of L.A.
In light of the foregoing, it does not appear that Plaintiff has demonstrated any clear error or manifest injustice sufficient to support the Court’s reconsideration of the dismissal of the action.
The Court is inclined to DENY the motion.
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):
Anis Khalil Represented By
Larry G Noe
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Plaintiff(s):
Anis Khalil Represented By
Larry G Noe
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
Also #27 EH
Docket 107
On December 8, 2017, Mark Bastorous & Bernadette Shenouda filed a Chapter 7 voluntary petition.
On March 12, 2018, Anis Khalil ("Plaintiff") filed a complaint against Mark Bastorous & Bernadette Shenouda, (collectively, "Defendants"; individually, "Bastorous" and "Shenouda") for nondischargeability pursuant to § 523(a)(2)(A). On April 11, 2018, the Defendants filed a motion to dismiss.
Plaintiff subsequently amended his complaint on May 3, 2018. On June 4, 2018, Defendants filed a second motion to dismiss. Ultimately, on October 22, 2018, the Court granted the motion, requiring Plaintiff to provide more detail to meet the heightened pleading requirements for fraud. The next day, Plaintiff filed a second amended complaint. On November 6, 2018, Defendants filed a third motion to dismiss. On January 2, 2019, the Court granted the motion, requiring Plaintiff to clearly articulate the state law basis of the debt if Plaintiff was going to request a judgment which included monetary and punitive damages.
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On January 11, 2019, Plaintiff filed his third amended complaint. On January 25, 2019, Defendants filed another motion to dismiss. On February 26, 2019, Plaintiff filed his opposition. On April 10, 2019, the Court entered an order denying the motion to dismiss the third amended complaint. That same day, Defendants filed their answers.
On June 12, 2019, the Court held the first status conference after the filing of Defendants’ answers. Plaintiff did not appear at the status conference. On June 17, 2019, the Court issued an order to show cause why the case should not be dismissed for lack of prosecution. On July 15, 2019, twelve days after the response deadline and only two days before hearing, Plaintiff filed his opposition; the Court withdrew the order to show cause at the hearing.
On June 20, 2019, the Court entered a scheduling order. Among the provisions in the scheduling order were the following: (1) a discovery cut-off of November 30, 2019;
a deadline to file a joint status report of January 8, 2020; and (3) the continuation of the status conference to January 15, 2020.
On December 6, 2019, Plaintiff filed a motion to compel the deposition of Bastorous. On December 30, 2019, Defendants filed a motion to compel the deposition of Plaintiff. Both motions were opposed.
On January 15, 2020, the Court held a continued status conference. For the second time in a row, Plaintiff did not appear and did not file any status report. The Court issued another order to show cause why the case should not be dismissed for lack of prosecution (the "OSC") [Dkt. No. 82]. On January 24, 2020, Plaintiff filed a late response to the OSC. On January 29, 2020, Defendants filed their reply. On February 5, 2020, the Court held a hearing on the OSC. Neither Plaintiff nor an attorney representing him appeared. For the reasons stated on the record at the hearing of February 5, the Court subsequently dismissed the action.
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On February 14, 2020, Plaintiff filed a motion for leave to file over-length brief and a motion to reconsider the dismissal of the action. The Court also notes that Plaintiff filed a substitution of attorney that same day indicating that Larry Noe ("Noe") was now the attorney of record for the action. On March 18, 2020, Defendants filed an opposition to the motion to reconsider.
Authorization to File Over-Length Brief
While Plaintiff has filed a motion requesting authority to file an over-length, the motion itself does not any contain any legal citation or argument relating to the filing of over-length briefs. Additionally, the Court notes that Local Rule 9013-1(b)(1) provides that an over-length brief is a brief exceeding thirty-five pages. Here, Plaintiff not having filed a brief exceeding thirty-five pages, the brief is not over-length.
Therefore, the Court will DENY the motion.
Reconsideration
Plaintiff cites to FED. R. CIV. P. Rules 59 and 60, incorporated in bankruptcy proceedings by FED. R. BANKR. P. Rule 9023 and 9024, as the grounds for the motion to reconsider. The Court notes that Plaintiff also appears to cite a local rule of the district court that is not applicable to proceedings in this Court.
As is noted by Plaintiff, pursuant to FED. R. CIV. P. Rule 59, "[r]econsideration is appropriate if the [] court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is a
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intervening change in controlling law." School Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc. 5 F.3d 1255, 1263 (9th Cir. 1993). The second provision appears to be the only provision that Plaintiff alleges to be applicable to this case. Regarding FED. R. CIV. P. Rule 60(b), it is not exactly clear what provision of the rule Plaintiff argues is applicable to the instant case.
Violation of Due Process
Plaintiff’s first argument is that his due process rights were violated because "Defendant knowingly and intentionally delayed four days before serving it on Plaintiff’s attorney" and because the OSC only gave Plaintiff six days to file a written opposition.
The Court rejects this argument for a variety of reasons. First, as it noted by Defendants, Noe was not attorney of record for Plaintiff at the time the OSC was issued. As a result, the fact that Defendants served Noe with the OSC was simply a matter of professional courtesy, not an action required by the Court or any applicable rules. Second, the Court served Plaintiff directly with the OSC on January 18, 2020; that notice may have been ineffective, however, because Plaintiff’s address is listed as the office address of his former counsel, Wayne Suojanen, who has not been eligible to practice law since July 2019. Most importantly, however, Plaintiff was simply not deprived of notice and an opportunity to be heard. Plaintiff and Noe both filed a declaration in opposition nine days before the hearing, the Court considered both declarations, and the Court held a hearing on the OSC which Plaintiff or a representative had an opportunity to appear at. Instead, while both Plaintiff and Noe clearly had knowledge of the hearing, they both declined to appear. Neither Plaintiff nor Noe raised lack of due process in their declarations or at the OSC hearing, nor did either party request additional time to respond to the OSC. Furthermore, the Court had previously issued an earlier order to show cause warning Plaintiff that the case may be dismissed if Plaintiff failed to appear and prepare for status conferences. As a result, the Court concludes that Plaintiff was not deprived of due process. See generally Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (outlining
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balancing test for due process).
Failure to Identify Grounds for Dismissal
Next, Plaintiff argues that the basis for dismissal in the Court’s tentative ruling was not adequately identified in the OSC. Specifically, Plaintiff asserts that the tentative ruling included six grounds for dismissal, and Plaintiff asserts that only one of those grounds was identified in the OSC.
Plaintiff’s argument lacks merit. The OSC stated that it was being issued "pursuant to Local Rule 7016-1(g) and FED. R. CIV. P. Rule 16(f)(1)(B)-(C), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7016. These rules identify a variety of examples of the failure to properly prosecute a matter. The tentative ruling issue by the Court simply articulated, in factual detail, the specific ways in which Plaintiff had failed to properly prepare or participate in this proceeding. In other words, the Court’s tentative ruling simply provided a non-exhaustive list of the reasons for dismissal under FED. R. CIV. P. Rule 16(f)(1) or Local Rule 7016-1(g).
Incorrect Factual and Legal Conclusions
Plaintiff next argues that dismissal of the case was premised upon mistaken factual findings and legal conclusions. Plaintiff’s argument fails simply due to the fact that assuming, arguendo, that the factual findings and legal conclusions were incorrect, it would be insufficient to warrant reconsideration of the dismissal of the action.
Specifically, the factual findings and legal conclusions challenged by Plaintiff merely were secondary considerations in the Court’s ruling. The Court notes that Plaintiff’s heavy reliance on the Court’s tentative ruling – a document that is not actually part of the record in this case and that was simply meant to facilitate discussion at the hearing on the OSC – results in a distorted representation of the Court’s rationale in dismissing the case. Unfortunately, because Plaintiff and Noe did not actually appear at or attend the hearing on the OSC, it appears that neither party has adequate knowledge of the discussion on the record, which primarily addressed Plaintiff’s
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failure to appear at hearings or properly prosecute the case. Nevertheless, the Court will address Plaintiff’s arguments.
Plaintiff identifies two issues upon which he asserts that this Court make mistaken legal conclusions. First, Plaintiff argues that ghostwriting pleadings is permissible in certain circumstances (and, implicitly, that those circumstances are implicated here). Second, Plaintiff argues that a suspended attorney is still permitted to file documents on behalf of a client because filing documents does not constitute the practice law.
In support of the contention that ghostwriting pleadings for a pro se party is permissible, Noe cites to an opinion of the Orange County Bar Association and the California Rules of Court. While the ghostwriting of pleadings may be permissible in some instances in state court, in federal court the practice is considered unethical and sanctionable. See, e.g., LOS ANGELES LAWYER, March 2016 at pg. 12 ("Federal courts nearly unanimously condemn ghostwriting as being a form of misrepresentation to the court as well as a violation of Rule 11 and various ethical rules governing candor to the tribunal.") (collecting cases). The authority cited by Noe to the contrary is inapplicable to proceedings in this Court and does not undermine this Court’s conclusion that Noe may have committed ethical violations and sanctionable conduct.
Regarding Plaintiff’s contention that a suspended attorney is allowed to file documents on behalf of an attorney, while such a practice may not be an ethical violation, it appears to be a violate of Section 3 of the Court Manual regarding electronic filing eligibility. Regardless, the Court’s primary concern with the participation of Plaintiff’s former attorney, Wayne Suojanen, is that it is clear documents were drafted by Wayne Suojanen while he was ineligible to practice law. As one example, on July 25, 2018, Wayne Suojanen filed an opposition to a motion to dismiss. The opposition identifies Wayne Suojanen as the attorney for Plaintiff and contains significant legal analysis. At the time this document was filed, Wayne Suojanen was ineligible to practice law according to the California State Bar’s records available online. Therefore, the Court’s conclusion that Wayne Suojanen may have committed unethical or sanctionable conduct does not appear to be erroneous,
Finally, Plaintiff argues that Defendants were disingenuous in representing that they
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did not have valid contact information for Plaintiff. Plaintiff’s argument on this point is, at best bizarre. Plaintiff appears to argue that Defendants have had Plaintiff’s contact information for several years, and, therefore, should have been aware of how to contact Plaintiff. Additionally, Plaintiff offers an e-mail from Wayne Suojanen in November 2019 which states that the old contact information for Plaintiff is no longer "good" (seemingly undermining the argument in the preceding sentence) and inviting Defendants to search FastPeopleSearch.com for possible phone numbers. This evidence is not remotely sufficient to establish that Plaintiff properly provided Defendants with valid contact information.
In accordance with the foregoing, the Court is unpersuaded that any of the alleged factual or legal errors raised by Plaintiff have merit. More importantly, none of the points addressed above related to the core basis of dismissal of the action – that Plaintiff failed to properly participate in or prosecute this action.
Failure to Consider Lesser Remedies
Finally, Plaintiff argues that the Court should have imposed less severe sanctions, such as payment of attorney fees. Plaintiff cites the factors outlined by the Ninth Circuit in Thompson v. Housing Authority of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986), although Plaintiff does not apply those factors to this case. The sentence before the Ninth Circuit outlined factors to be considered, however, the Ninth Circuit stated: "[w]e have repeatedly upheld the imposition of the sanction of dismissal for failure to comply with pretrial procedures mandated by local rules and court orders." Id. In fact, in Thompson, the following facts led to the district court’s dismissal of the action, and the Ninth Circuit summary affirmance of that dismissal: (a) Plaintiff was unprepared at three pretrial conferences; and (b) Plaintiff failed to properly conduct discovery and failed to seek an extension of the discovery deadline.
In this case, Plaintiff failed to appear or prepare a status report at the two most recent status conferences. After the first failure, the Court issued an order to show cause why the case should not be dismissed, which was ultimately withdrawn by the Court.
Plaintiff also failed to conduct discovery in a timely manner and did not seek an extension of the discovery deadline. Essentially, the facts in this case are rather similar
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to the facts that led to dismissal in Thompson v. Housing Authority of City of L.A.
In light of the foregoing, it does not appear that Plaintiff has demonstrated any clear error or manifest injustice sufficient to support the Court’s reconsideration of the dismissal of the action.
The Court is inclined to DENY the motion.
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):
Anis Khalil Represented By
Larry G Noe
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Plaintiff(s):
Anis Khalil Represented By
Larry G Noe
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, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20, 3/18/20
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
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Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01174 Pringle Ch 7 Trustee v. Shenouda et al
From: 10/31/18, 2/27/19, 6/12/19, 9/18/19, 11/20/19
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
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Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
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#: 6:13-01171 Schrader v. Sangha
EH
Docket 355
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
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Adv#: 6:13-01171 Schrader v. Sangha
From: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20
Also #31 EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From: 3/19/20 EH
Docket 35
- NONE LISTED -
Debtor(s):
Jose Luis Castillo Represented By Sunita N Sood Seema N Sood
Movant(s):
Jose Luis Castillo Represented By Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Sunita N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood Seema N Sood
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/12/20 Also #3
EH
Docket 35
- NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Movant(s):
Edwin Briones Represented By Kevin Tang Kevin Tang
Gabriela Sandez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #2 EH
Docket 29
- NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 & #6 EH
Docket 27
On November 26, 2019 ("Petition Date"), Juan Carlos De La Cruz ("Debtor") and Claudia Veronica De La Cruz ("Joint Debtor") (collectively, "Debtors") filed a Chapter 13 voluntary petition. Pursuant to FRBP 1007(a), Debtors listed Bourns Employees Federal Credit Union (hereinafter "Bourns Employees FCU") as one of their unsecured creditors. Debtors then served all the creditors by certified mail including Bourns Employees FCU:
Bourns Employee FCU 1200 Columbia Avenue
Riverside, CA 92507
Pursuant to FRBP 3002(c), the deadline for filing claims for non-governmental creditors was set at February 4, 2020 (hereinafter the "Bar Date"). Twelve days after the deadline, on February 14, 2020, Bourns Employees FCU filed five claims:
Claim 18-1, amended to Claim 18-2, in the amount of $8,153.13;
Claim 19-1, amended to Claim 19-2, in the amount of $14,245.01
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Claim 20-1 in the amount of $18,016.37
Claim 21-1 in the amount of $4,305.67; and
Claim 22-1 in the amount of $5,288.95.
"The claim allowance process involves several steps. The first step in the process is filing a claim. The substantive rights of various parties to file claims are found in [11 U.S.C.] § 501; The procedure for doing so is located in [FRBP] 3002. Once filing is accomplished, the substance of the claim is considered under [11 U.S.C.] § 502. A claim may not be allowed because of defects at any of these steps." In re Turner, 157 B.R. 904 (Bankr. N.D. Ala. 1993); see also In re Tomlan, 907 F.2d 114 (9th Cir. Ct. App. 1990) (affirming the lower court’s decision that "an untimely claim cannot be allowed, and that the Bankruptcy Court has no discretion to allow such claims where no motion for an extension of time was filed…").
In this case, Proof of Claim 18-1, 21-1, and 22-1 were filed after the Bar Date, and Bourn Employee FCU did not object to this motion. Pursuant to 9015-1(h), if a party does not timely file and serve documents, the Court may deem this to be consent to the granting or denial of the motion.
Based on the foregoing, the Court GRANTS the request to disallow claims 18-1, 21-1, and 22-1 as those claims were filed after the BAR Date.
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 Carlos De La Cruz Represented By Sanaz S Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani
Movant(s):
Juan Carlos De La Cruz Represented By Sanaz S Bereliani
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 & #6 EH
Docket 29
On November 26, 2019 ("Petition Date"), Juan Carlos De La Cruz ("Debtor") and Claudia Veronica De La Cruz ("Joint Debtor") (collectively, "Debtors") filed a Chapter 13 voluntary petition. Pursuant to FRBP 1007(a), Debtors listed Bourns Employees Federal Credit Union (hereinafter "Bourns Employees FCU") as one of their unsecured creditors. Debtors then served all the creditors by certified mail including Bourns Employees FCU:
Bourns Employee FCU 1200 Columbia Avenue
Riverside, CA 92507
Pursuant to FRBP 3002(c), the deadline for filing claims for non-governmental creditors was set at February 4, 2020 (hereinafter the "Bar Date"). Twelve days after the deadline, on February 14, 2020, Bourns Employees FCU filed five claims:
Claim 18-1, amended to Claim 18-2, in the amount of $8,153.13;
Claim 19-1, amended to Claim 19-2, in the amount of $14,245.01
11:00 AM
Claim 20-1 in the amount of $18,016.37
Claim 21-1 in the amount of $4,305.67; and
Claim 22-1 in the amount of $5,288.95.
"The claim allowance process involves several steps. The first step in the process is filing a claim. The substantive rights of various parties to file claims are found in [11 U.S.C.] § 501; The procedure for doing so is located in [FRBP] 3002. Once filing is accomplished, the substance of the claim is considered under [11 U.S.C.] § 502. A claim may not be allowed because of defects at any of these steps." In re Turner, 157 B.R. 904 (Bankr. N.D. Ala. 1993); see also In re Tomlan, 907 F.2d 114 (9th Cir. Ct. App. 1990) (affirming the lower court’s decision that "an untimely claim cannot be allowed, and that the Bankruptcy Court has no discretion to allow such claims where no motion for an extension of time was filed…").
In this case, Proof of Claim 18-1, 21-1, and 22-1 were filed after the Bar Date, and Bourn Employee FCU did not object to this motion. Pursuant to 9015-1(h), if a party does not timely file and serve documents, the Court may deem this to be consent to the granting or denial of the motion.
Based on the foregoing, the Court GRANTS the request to disallow claims 18-1, 21-1, and 22-1 as those claims were filed after the BAR Date.
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 Carlos De La Cruz Represented By Sanaz S Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani
Movant(s):
Juan Carlos De La Cruz Represented By Sanaz S Bereliani
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 & #5 EH
Docket 31
On November 26, 2019 ("Petition Date"), Juan Carlos De La Cruz ("Debtor") and Claudia Veronica De La Cruz ("Joint Debtor") (collectively, "Debtors") filed a Chapter 13 voluntary petition. Pursuant to FRBP 1007(a), Debtors listed Bourns Employees Federal Credit Union (hereinafter "Bourns Employees FCU") as one of their unsecured creditors. Debtors then served all the creditors by certified mail including Bourns Employees FCU:
Bourns Employee FCU 1200 Columbia Avenue
Riverside, CA 92507
Pursuant to FRBP 3002(c), the deadline for filing claims for non-governmental creditors was set at February 4, 2020 (hereinafter the "Bar Date"). Twelve days after the deadline, on February 14, 2020, Bourns Employees FCU filed five claims:
Claim 18-1, amended to Claim 18-2, in the amount of $8,153.13;
Claim 19-1, amended to Claim 19-2, in the amount of $14,245.01
11:00 AM
Claim 20-1 in the amount of $18,016.37
Claim 21-1 in the amount of $4,305.67; and
Claim 22-1 in the amount of $5,288.95.
"The claim allowance process involves several steps. The first step in the process is filing a claim. The substantive rights of various parties to file claims are found in [11 U.S.C.] § 501; The procedure for doing so is located in [FRBP] 3002. Once filing is accomplished, the substance of the claim is considered under [11 U.S.C.] § 502. A claim may not be allowed because of defects at any of these steps." In re Turner, 157 B.R. 904 (Bankr. N.D. Ala. 1993); see also In re Tomlan, 907 F.2d 114 (9th Cir. Ct. App. 1990) (affirming the lower court’s decision that "an untimely claim cannot be allowed, and that the Bankruptcy Court has no discretion to allow such claims where no motion for an extension of time was filed…").
In this case, Proof of Claim 18-1, 21-1, and 22-1 were filed after the Bar Date, and Bourn Employee FCU did not object to this motion. Pursuant to 9015-1(h), if a party does not timely file and serve documents, the Court may deem this to be consent to the granting or denial of the motion.
Based on the foregoing, the Court GRANTS the request to disallow claims 18-1, 21-1, and 22-1 as those claims were filed after the BAR Date.
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 Carlos De La Cruz Represented By Sanaz S Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani
Movant(s):
Juan Carlos De La Cruz Represented By Sanaz S Bereliani
Claudia Veronica De La Cruz Represented By Sanaz S Bereliani Sanaz S Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 21
On December 12, 2019 (hereinafter "Petition Date"), Nicholas Rodriquez (hereinafter "Debtor") filed for a Chapter 13 voluntary petition. Debtor filed this petition in hopes of reorganizing his debt and saving his home. Dkt. No. 21, Memorandum of Points and Authorities.
On January 15, 2020, Debtor attended 11. U.S.C. § 341(a) meeting with the creditors. Id. Debtor tendered his first plan payment at the meeting. In that meeting, the Chapter 13 Trustee, Rod Danielson, through his counsel (hereinafter Trustee’s Counsel") and the Debtor agreed to increase the Chapter 13 plan payments from
$414.00, paying unsecured creditors two percent of their claim, to $500.00. Id.
Pursuant to 11 U.S.C. § 1326(a), Debtor was aware that plan payments were due on the 11th day of each month. Dkt. No. 23, see also LBR 3015-1(k)(1)(A). On February 11, 2020, when the plan payment was due, Debtor attained a cashier check in the amount of $500.00, and sent it certified mail to the Chapter 13 Trustee:
P.O. Box 92997, Los Angeles, CA 90009
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Debtor provided receipts of this transaction, the tracking of the certified mail, and evidence of when it was delivered, February 12, 2020. Dkt. No. 21. Exhibits C to E.
On February 22, 2020 (hereinafter the "hearing date") of the Chapter 13 plan confirmation, the Court asked Trustee’s counsel if she had received the plan payment. The Trustee’s Counsel answered no. The Court then proceeded to ask Debtor’s counsel is she had the payment. She responded no. The Court then dismissed the case.
On February 28, 2020, Debtor filed this motion, asking the Court to vacate the dismissal, so Debtor can proceed with reorganizing his debt and saving his house.
FRCP 60(b)(1)—Mistake
FED. R. CIV. P. Rule 60(b)(1) states:
mistake,…or excusable neglect
Exceptions, including this rule, are reserved for extreme cases. In re Sheehan, 253 F.3d 507 (9th Cir. Ct. App. 2001) (stating the level of weight giving to Fed. R. Civ. P. Rule 60(b)). In this case, "Debtor’s mistake" is not an extreme case. Debtor
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knowingly mailed his plan payment the date it was due. Debtor knew he was delinquent in regard to his plan payment and did not take appropriate measure to ensure it was delivered stating that "the United States Post Office had confirmed delivery." Dkt. No. 21, Memorandum of Points and Authorities.
In the Chapter 13 Trustee’s frequently asked questions posted on his website, the payment is delinquent unless it is "posted" to the correct case. FAQ. http://www.rodan13.com/index-4.html#Anchor-10749. It is still delinquent even when received by certified mail.
FRCP 60(b)(1)—Excusable Neglect
To determine whether neglect is excusable, the court reviews the four factors set forth in Pioneer Inv. Serv. v. Brunswick Ass’n Ltd. P’ship et al: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay, and (4) whether the movant acted in good faith. 507 U.S. 380, 395 (1993).
With regard to the first factor, the Trustee argues that he has already commenced closing procedures and reopening the case would create numerous inefficiencies. Dkt. No. 23. He further states that Debtor did not give notice to all claimants addresses on their Official Form 410. Id.
Addressing the Second factor, the Court believes the delay of about eight days from entering the dismissal of the motion to filing the motion to vacate is relatively de minimis. The Debtor would only have to pay roughly two monthly payments to cure the delinquency. This factor weighs in favor of the Debtor.
The third and fourth factors, however, weighs against the Debtor. Good faith was not shown. In addition, it was unreasonable for the Debtor to not confirm Trustee had received payment when he knew the he was already delinquent when he mailed the certified letter or to bring funds to the confirmation hearing. Thus, the Pioneer factors does not weigh in favor of vacating dismissal.
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FRCP 60(b)(6)—Other Reason Justifying Relief
To determine whether relief should be granted under subsection (6), a party must show "extraordinary circumstances" suggesting that party is faultless in the delay. Pioneer Inv. Serv. v. Brunswick Ass’n Ltd. P’ship et al, 507 U.S. at 396. That is, "the party must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1040 (9th Cir. 1993).
In this case, Debtor has not proven that circumstances were out of his control.
Debtor knew he was delinquent when he mailed the payment.
Thus, for the reasons stated above, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Nicholas Rodriguez Represented By Heather J Canning
Movant(s):
Nicholas Rodriguez Represented By Heather J Canning Heather J Canning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 13
BACKGROUND
On February 19, 2020 ("Petition Date"), Jennifer Isabella Solares (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
In her commencement documents, Debtor stated that she owned a 2017 Toyota Camry SE 2017 (hereinafter the "Camry"). Dkt. No. 1. The Camry was valued at 8,288.00 and it was secured a claim owed by Americredit Financial Services, Inc. doing business as General Motors Financial (hereinafter "GM") in the amount of
$21,762.91, leaving an unsecured amount of $13,474.91. Id.
GM, in its Form 410, Proof of Claim 3-1, valued the Camry at $11,150.00 and its secured amount of the claim at the same amount, leaving $15,174.43 unsecured for a total claim in the amount of $26,324.43. GM provided the Retail Installment Sale Contract, the Certificate of Title, and the amount owed as of the Petition Date. Claim 3-1.
Debtor does not question the validity of the Claim 3-1. However, Debtor has filed this motion in order to determine the extent to what amount is secured and unsecured. Debtor’s Chapter 13 plan proposes to bifurcate Claim 3-1 and pay the secured portion of the claim through the plan. Dkt. No. 13.
DISCUSSION
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The Burden of Proof
A debtor bears the burden of proof on the issue of valuation under 11. U.S.C. § 506(a). In re Ahmed, 2011 Bankr. Lexis 1000, *4 (Bankr. N.D. Cal. 2011) citing In re Finnegan, 358 B.R. 644, 649 (Bankr. M.D. Penn. 2006).
Valuation Standard
11 U.S.C. § 506(a)(2):
"If the debtor is an individual in a case under Chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determine based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined."
Valuation of the Camry
To strengthen her motion to set the value for the vehicle, Debtor provided a valuation report from Kelly Blue Book (hereinafter "KBB"). Dkt. No. 13, Ex. B. The Camry’s private party value was $8,288.00.
In re Morales, the court concluded that retail values of vehicles should be calculated by adjusting the Kelly Blue Book or N.A.D.A Guide retail value by a reasonable amount based on evidence presented. 387 B.R. 36 (Bankr. C.D. Cal. 2008). "The burden in proving the reasonableness of any deviation from the guide retail value rests with the debtor because the debtor has the best access to information about the condition of the vehicle." Id. at 45. Debtor did not provide the retail value of the Camry but decided to value it using the private party value. Debtor did not provide any additional evidence to suggest why the private party value should be used instead of the retail value.
11:00 AM
Opposition: None Service: Proper
CONTINUE the hearing for the Debtor to provide the retail value. APPEARANCES REQUIRED.
Debtor(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
Movant(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 20
- NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Movant(s):
Dennis Gene Rankin Represented By Todd L Turoci Todd L Turoci Todd L Turoci Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #9 EH
Docket 0
- NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #12 EH
Docket 27
The claim register reflects two identical claims filed by Creditor Mike Ghost (hereinafter "Creditor"): (1) Claim 3 and (2) Claim 4, each in the amount of
$142,000.00. On February 26, 2020, Debtor filed an objection to Claim 3 (which Debtor assents has somehow been assigned "Claim 4" by the Trustee), arguing it is duplicative of Claim 4. On March 16, 2020, Creditor filed a notice withdrawing Claim 4 as duplicative of Claim 3.
To the extent the Court can make sense of the motion, the issue appears resolved by Creditor’s withdrawal of Claim 4, which leaves Claim 3 as the remaining claim.
Based on the foregoing, the Court DENIES the motion as moot based on the
11:00 AM
Creditor withdrawing Claim 4.
Debtor(s):
APPEARANCES REQUIRED.
Jim Curtis Lower III Represented By Robert J Spitz
Movant(s):
Jim Curtis Lower III Represented By Robert J Spitz Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #11 EH
Docket 0
- NONE LISTED -
Debtor(s):
Jim Curtis Lower III Represented By Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Santos Mercado Macias Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Blanca Bojorquez De Leon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Pete Moises Alvarez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Fiji Simmons Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angelica Lomeli Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 6
- NONE LISTED -
Debtor(s):
Jose Luis Rodriguez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Felipe E. Gamboa Represented By Christopher J Langley
Joint Debtor(s):
Yanet Gamboa Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Perry A Covello Represented By Gary S Saunders
Joint Debtor(s):
Tia Lia Covello Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Jamar A Earnest Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Christopher Lee Sawyer Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 20
- NONE LISTED -
Debtor(s):
Malalage Malalasekera Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Forst Levert Hooper Represented By Andy C Warshaw
Joint Debtor(s):
Kimberly Hooks Hooper Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Jesus Gabriel Vazquez Jr. Represented By Steven A Alpert
Joint Debtor(s):
Irma Vazquez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Robert Aguado Represented By Paul Y Lee
Joint Debtor(s):
Connie J Aguado Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Sandra Jeanne McAllister Represented By John P O'Connell
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 20
- NONE LISTED -
Debtor(s):
Angel Hernandez Represented By Bryn C Deb
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Patrick E. Berry Represented By Terrence Fantauzzi
Joint Debtor(s):
Michelle L. Brown Berry Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Carole Christine Bailey Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- NONE LISTED -
Debtor(s):
Maria Aurora Chaidez Grajeda Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Carl Darvin Gempeler Represented By Nicholas M Wajda
Joint Debtor(s):
Charmaine Nina Gempeler Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 95
- 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
EH
Docket 82
- NONE LISTED -
Debtor(s):
Juanita Francis Casey Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- 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
Docket 84
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- 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 28
- NONE LISTED -
Debtor(s):
Maribel Villarreal Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Cynthia Molina Gomez Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Rhonda Jan Kennedy Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Phonmany Phengphavong Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 24
- NONE LISTED -
Debtor(s):
Patricia Gates Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 24
- NONE LISTED -
Debtor(s):
Florence Marie Rodriguez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 78
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: BERNICE H. ANTUNEZ
EH
Docket 13
Service: Improper Opposition: None
The Court has reviewed the motion. On March 13, 2020 (hereinafter "Petition Date"), Bernice H. Antunez (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
Pursuant to 11 U.S.C. § 362(c)(3), the automatic stay in respect to the Debtor expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtor had one prior Chapter 13 voluntary petition, case number 6:18-bk-13292-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, U.S. Bank National Association, as trustee, on behalf of the holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series NC 2006-HE4 Asset Backed Pass-Through Certificates, Series NC 2006-HE4 (hereinafter "U.S. Bank") filed a motion for relief from stay from the real property located at 2180 Cordillera Avenue, Colton, CA 92324 (hereinafter the "Property"). Debtor and U.S. Bank agreed to an adequate protection agreement with the following conditions:
Debtor makes regular monthly payments of $1,917.73, starting on
12:00 PM
May 1, 2019;
debtor must maintain insurance coverage on the Property; and
the stay will remain in effect on the Property.
Pursuant to the Miscellaneous Instructions of the Court, if in a prior case, a secured creditor filed a motion from relief from the automatic stay, the Debtor must serve the secured creditor’s counsel. In Debtor’s proof of service, U.S. Bank’s counsel was not served.
In addition, in the Prior Case, Debtor was delinquent on plan payments in the amount of $4,067.76. Debtor opposed the motion from the Trustee, Rod Danielson, to dismiss her case. In the opposition, Debtor stated that she had a stroke and was unable to work, and Debtor would bring plan payments current before the scheduled hearing.
Prior Case, Dkt. No. 36. Unfortunately, on the hearing date, Debtor still had not tendered payment to the Trustee. Debtor’s counsel asked for a short continuation; however, the Court dismissed the case. Prior Case, Dkt. No. 41, Motion to Vacate Dismissal, which was later withdrawn by the Debtor.
Debtor has filed this motion to continue the stay pursuant to 11. U.S.C 362(c)(3)(B). The Prior Case was dismissed because Debtor was delinquent on plan payments, the filing of this petition, is presumed to not be filed in good faith. 3 Collier on Bankruptcy ¶ 362.06[3][b] (Richard Levin & Henry J. Sommer eds., 16th ed.).
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor described why she was unable to make the Prior Case’s plan payments—she had a stroke. Nonetheless, Debtor has not provided evidence as to when she was hospitalized, how long she was hospitalized, or when she was approved to work. Dkt. No. 13, Decl. of Debtor in Support of Good Faith Filing.
12:00 PM
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtor could have provided a "doctor’s note" or a statement from her employer stating her underlying condition that prevented her from working at such date and she is now able to work starting at such date.
Debtor’s generic statements alone are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith. Furthermore, service was improper because Debtor failed to serve U.S. Bank’s counsel. Thus, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Bernice H Antunez Represented By Daniel King
Movant(s):
Bernice H Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: ARMANDO GUZMAN
EH
Docket 14
Service: Improper Opposition: None
On March 13, 2020 (hereinafter "Petition Date"), Armando Guzman (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
Debtor had one prior Chapter 13 voluntary petition, case number 6:18-bk-11432-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, Freedom Mortgage Corporation (hereinafter "FMC") filed a motion for relief from stay from the real property located at 29351 Summerset Drive, Menifee, CA 92586 (hereinafter the "Property"). Debtor and FMC agreed to an adequate protection agreement with the following conditions:
Debtor makes regular monthly payments of $2,133.67, starting on January 1, 2019;
debtor must cure post-petition default by making equal monthly payments of $1,551.79 starting on January 15, 2020 to December 15, 2020; and
the stay will remain in effect on the Property.
Pursuant to the Miscellaneous Instructions of the Court, if in the prior case, a secured
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creditor filed a motion from relief from the automatic stay, the Debtor must serve the secured creditor’s counsel. In Debtor’s proof of service, he served FMC but not its counsel.
In addition, in the Prior Case, Debtor was delinquent on plan payments in the amount of $777.89. Debtor opposed the Trustee’s motion to dismiss his case, stating that he would be current before the hearing date and implied that his delinquency was because of his wife passing away from cancer. Prior Case, Dkt. No. 62. Unfortunately, on the hearing date, Debtor still had not tendered payment to the Trustee. The Court then dismissed the case. Prior Case, Dkt. No. 64.
Debtor filed this motion to continue the stay pursuant to 11. U.S.C 362(c)(3)(B). Since the Prior Case was dismissed because Debtor was delinquent on plan payments, the filing of this petition is presumed to not be filed in good faith. 3 Collier on Bankruptcy ¶ 362.06[3][b] (Richard Levin & Henry J. Sommer eds., 16th ed.).
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor described that he was unable to make his play payments because he took time off from work to take care of his wife as she battled terminal cancer, but she lost that battle in November 2019. Dkt. No. 14, Decl. of Debtor in Support of Good Faith Filing.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtor has not provided detailed, competent, evidence sufficient to rebut the presumption of bad faith. Specifically, there is no detail or supporting evidence as to when Debtor left work and when he returned to work, and the financial effect.
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Debtor’s statements lacking detail are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith. Furthermore, service was improper because Debtor failed to serve FMC’s counsel. Thus, the Court is inclined to CONTINUE the motion, so Debtor can address the Court’s concerns.
APPEARANCES REQUIRED.
Debtor(s):
Armando Guzman Represented By Daniel King
Movant(s):
Armando Guzman Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: BERNICE H. ANTUNEZ
From: 4/2/20 EH
Docket 13
Service: Proper Opposition: None
The Court has reviewed the Supplemental Declaration. The Debtor has met the "clear and convincing" standard to overcome the presumption of bad faith. Thus, the Court is inclined to GRANT this motion. The stay remains in effect against 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):
Bernice H Antunez Represented By Daniel King
Movant(s):
Bernice H Antunez Represented By Daniel King
12:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: ARMANDO GUZMAN
From: 4/2/20 EH
Docket 14
Service: Proper Opposition: None
The Court has reviewed the Supplemental Declaration. The Debtor has met the "clear and convincing" standard to overcome the presumption of bad faith. Thus, the Court is inclined to GRANT this motion. The stay remains in effect against 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):
Armando Guzman Represented By Daniel King
Movant(s):
Armando Guzman Represented By Daniel King
12:00 PM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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
UNIVERSAL ORTHOPAEDIC Represented By
2:00 PM
Misty Perry Isaacson Misty A Perry Isaacson
Plaintiff(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#: 6:17-01085 PRINGLE v. Winn et al
From: 7/12/17, 8/23/17, 10/25/17, 5/16/18, 6/27/18, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20
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. Pro Se
Natalia V Knoch Pro Se
Steven B Knoch Pro Se
Stacy Winn Represented By
Douglas A Plazak
2:00 PM
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
From: 9/26/18, 11/7/18, 12/12/18, 1/30/19, 2/27/19, 4/10/19, 9/18/19, 10/9/19,
1/8/20
Also #6 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#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #5 EH
Docket 51
- 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
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Frank X Ruggier
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 10/16/19, 12/11/19, 1/8/20 Also #8
EH
Docket 1
- NONE LISTED -
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 1/8/20 Also #7
EH
Docket 11
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed a Chapter 7 voluntary petition. On August 22, 2019, Robert S. Whitmore (the Chapter 7 "Trustee") brought an adversary proceeding against Jose Gularte ("Mr. Gularte") and Marjorie Elizabeth Gularte-Torres ("Mrs. Gularte-Torres") (collective, "Defendants") for the benefit of the estate.
The adversary proceeding arose from a real estate transaction between the Debtor and the Defendants. Debtor and her spouse, Edgar S. Torres, bought real estate at 1527 Fairwood Way, Upland, CA 91786 (the "Property) on November 2, 1990.
Less than two years before the Petition Date, on December 29, 2017, Debtor and her spouse transferred the Property to Mr. Gularte. Mr. Gularte then proceeded to transfer the deed to himself and his wife, Mrs. Gularte-Torres.
The Trustee alleges that the transfer among the parties is fraudulent and seeks to avoid the transfer and recover the Property for the estate.
The Trustee alleges that Defendants are insiders of the Debtor: Mr. Gularte is
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the debtor’s son-in-law, and Mrs. Gularte-Torres is the debtor’s daughter. Because Defendants and Debtor still reside at the same Property after the transfers occurred, Trustee alleges that Debtor still retains the benefit of ownership. The Trustee alleges that the consideration given was less than a reasonably equivalent value: a seller credit and a gift were given. The Trustee avers that the value of the consideration given was less than the value of the Debtor’s equity of $154,424.76.
The Trustee served the summons and complaint on Defendants by first-class mail to Defendants’ home on August 23, 2019. After forty-eight days without Defendants pleading or defending against the relief sought by the Trustee, the Trustee requested an entry for default judgment. On October 11, 2019, the Clerk of the Court entered a default judgment against defendants.
The Trustee now files this motion for an entry of default judgment by the Court to avoid and recovery the Property.
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C. §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
"Except as otherwise provided in subsections (b) and (d), a proceeding
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arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
Debtor’s lead bankruptcy case (19-bk-14650-MH) is currently pending in this Court.
Personal Jurisdiction
Jose Gularte and Marjorie Elizabeth Gularte-Torres are residents of California.
Thus, personal jurisdiction is proper.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Trustee has fulfilled such requirements in his request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person;
the defendants are not currently on active duty in the armed forces, etc. The Trustee also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b). Thus, the Clerk entered a valid entry of default.
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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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. The Trustee has not asked for the value of the Debtor’s equity in the Property, $154,424.76. Instead, the Trustee has asked the Court to rule that the transfers were fraudulent, the transfers should be avoided, and that the Property should be returned to the Debtor’s bankruptcy estate. Thus, by requesting an injunctive relief, the Trustee has correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due
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to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitle v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When it comes to the first factor, the Trustee, being the arbiter of the estate would only be prejudice in his responsibility to provide the best interest of parties in interest. That is, by not recovering the property, the creditors would receive potential less than what they could have.
Merits of Plaintiff’s Claim
The general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). "A default establishes the well-pleaded allegations of a complaint unless they are incapable of proof or are contrary to facts judicially noticed or to uncontroverted material in the file." In re McGee, 359 B.R. 764 (B.A.P 9th Cir.) (emphasis added by italicizing) (citing In re Consolidated Pretrial Proceedings in Air West Sec. Litigation, 436 F. Supp. 1281, 1286 (N.D. Cal. 1977)). A well-pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
The Trustee alleges, pursuant to 11U.S.C. § 548(a)(1)(A), that Debtor within two years of filing her petition transferred the Property with actual intent to hinder, delay, or defraud. The word ‘intent’ is used to denote that the actor desire to cause consequences of his act. [Vol 5] Collier on Bankruptcy ¶ [548.04] (Richard Levin & Henry J. Sommer eds., 16th ed.). "If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id.
Because it is difficult to prove actual intent, courts infer fraudulent intent from the circumstances surrounding the transfer; including but not limited to (1) insolvency or other unmanageable indebtedness on the part of the debtor, (2) special relationship between the debtor and transferee; and after the transfer, (3) retention by the debtor of the property. In re Acequia, Inc. 34 F.3d 800 (9th Cir. Ct. App. 1994). These circumstances are universally recognized as the "badges of fraud." Id.
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The Trustee has provided evidence that the value of the Property,
$575,000.000, which was agreed upon by Mr. Gularte and Debtor and her husband, was not given for consideration. (Dkt. No. 11, Ex. 5). In fact, something substantial less was given as consideration because Mr. Gularte received a "gift of equity" in the amount of $150,900.00. This special relationship—Defendants are the daughter and son-in-law of Debtor— precipitated such a gift alleged the Trustee. Furthermore, based on Debtor’s commencement documents, Debtor still lives at the Property, showing that Debtor still retains the benefit of the Property. (Dkt. No. 11, Ex. 7).
Taken as true and neither incapable of proof nor contrary to facts observed by the Court, the Trustee’s allegations are sufficient to prove the claim of an actual fraudulent transfer under 11 U.S.C § 548(a)(1)(A).
Moreover, taking the allegations of the compliant as true as to the second and third claims for relief, the Trustee has sufficiently alleged the elements of a claim for constructively fraudulent transfer against Defendants.
This leaves only one claim of relief left. Whether the Court grants recovery of the Property pursuant to 11 U.S.C. § 550(a). The Court has ruled that Trustee’s allegations are sufficient to prove that the transfer of the Property was fraudulent. Thus, making the transaction avoidable.
Based on the deeds transferring interest in the Property, Mr. Gularte is an immediate transferee and Mrs. Gularte-Torres is a mediate transferee.
Irrespective of how they are defined, 11 U.S.C. § 550(a)(1) and (a)(2) permit the Trustee to recover the property from the Defendants. Seeing no reason to do otherwise, the Court grants the Trustee the Property pursuant to 11 U.S.C. § 550(a).
Possibility of Disputes of Material Facts
The Trustee provided evidence from the Debtor’s commencement document stating the Debtor still resides at the Property. The Trustee provided evidence of the transfer of interest in the property from Debtor and her husband to Defendants. Dkt No. 11, Ex. 3, 4, and 5. Trustee provided evidence of the value of the Property and the consideration given. Dkt. No. 11, Ex 5.
Furthermore, Trustee duly served Defendants with process in this matter.
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Thus, the Court finds that the possibility of disputes of material facts is unlikely.
Sum at Stake in the Action
Even though the Trustee is looking for injunctive relief, the value of said property is significant to the estate. The last consideration given for the Property valued it at $575,000.00. Dkt. No.11, Ex 5. The Property would increase the bankruptcy estate by twenty-fold, weighing in favor of Defendants.
Excusable Neglect
Here, Defendants failed to plead or otherwise defend against the claim, and the Court does not otherwise see any basis for excusable neglect in the pleadings.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
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Thus, the Court is inclined to GRANT the motion to the extent of awarding Trustee judgment on the first, second, third, and fourth claims of relief.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Movant(s):
Robert S. Whitmore Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 1/9/19, 7/31/19, 10/16/19 EH
Docket 1
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 1/9/19, 7/31/19, 10/16/19, 4/13/20 EH
Docket 1
- NONE LISTED -
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
9:30 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
From: 3/24/20 EH
Docket 64
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306. Denice Laree Grimes’ and Derrick Gregory Grimes’ primary residence, which is at issue in this motion for relief from stay, came into this estate when Denice Laree Grimes and Derrick Gregory Grime (hereinafter "Debtors") filed this petition.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the Adjustable Rate Mortgage Note, the Deed of Trust, the Assignment of Deed of Trust, and evidence of three missed post-confirmation payments, pursuant to U.S.C. § 362(d)(1), Movant, Wilmington Trust National Association, not in its individual
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capacity, but solely as Trustee for MFRA Trust 2016-1 (hereinafter "Wilmington Trust") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors have not opposed the motion. Thus, they have not met their burden.
However, the lack of a response from Debtors, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2, 3, and 12. DENY 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):
Denice Laree Grimes Represented By
M. Wayne Tucker
Joint Debtor(s):
Derrick Gregory Grimes Represented By
M. Wayne Tucker
Movant(s):
Wilmington Trust, National Represented By Sumit Bode Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK TRUST NATIONAL ASSOCIATION
From: 3/10/20, 3/24/20 EH
Docket 97
Service: Proper Opposition: Debtor
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Furthermore, in a Chapter 13 voluntary petition, this estate also includes all such property acquired during the pendency of the case. 11. U.S.C. §1306. Katrina Renee McDowell’s primary residence, which is at issue in this motion for relief from stay, came into this estate when Katrina (hereinafter "Debtor") filed this petition.
Pursuant to 11 U.S.C. § 362, a voluntary Chapter 13 petition filed operates as a stay against enforcement on the Debtor or the property of the estate. By providing the note, the deed of trust, the corporate assignment of the deed of trust, and evidence of five missed post-confirmation payments, pursuant to U.S.C. § 362(d)(1), Movant, U.S. Bank Trust National Association as the Trustee of Bungalow Series F Trust
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(hereinafter "U.S. Bank") has established that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value, the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise, or that there is a significant likelihood of a successful reorganization in a reasonable time. 3 Collier on Bankruptcy
¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has opposed the motion, claiming (1) more payments have been made then what is shown by the movant, (2) all post-petition arrearages will be cured by the hearing date, (3) the Property is necessary for an effective reorganization, and (4) Debtor intends to enter into an adequate protection order with the movant. Dk No. 105, page 2.
The parties should inform the court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Movant(s):
U.S. Bank Trust National Represented By
Lemuel Bryant Jaquez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 80
- NONE LISTED -
Debtor(s):
Cheryl Linda Fernandez Represented By Matthew D. Resnik
Movant(s):
Wilmington Savings Fund Society, Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: RIVERSIDE CENTURY HILLS, INC.
From: 3/31/20 EH
Docket 82
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Movant(s):
Riverside Century Hills, Inc. Represented By Erin A Maloney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 50
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alfredo Pena Represented By
Dana Travis Milton Williams
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 1/7/20, 2/4/20, 3/3/20, 3/24/20 EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
Docket 79
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
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applicable; and
(emphasis added). Here, Debtor’s statement of intention does not address the subject collateral. The deadline for filing or amending the statement of intention having passed pursuant to 11 U.S.C. § 521(a)(2)(A), the automatic stay has terminated as a matter of law.
Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Mariama T Jobe Represented By Gary S Saunders
Movant(s):
Exeter Finance, LLC Represented By Cheryl A Skigin
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 55
Service: Proper Opposition: None
11 U.S.C. § 362(c)(4)(i) provides that
if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case
Here, Juan Andrade two previous Chapter 13 cases dismissed in the year preceding the instant bankruptcy case. Debtors not having filed a motion to impose the automatic stay, the automatic stay did not arise in this case. Therefore, the automatic stay never having arisen in this case, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Juan Manuel Andrade Represented By
J.D. Cuzzolina
Joint Debtor(s):
Cecilia R Andrade Represented By
J.D. Cuzzolina
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: GUILD MORTGAGE COMPANY
EH
Docket 45
- NONE LISTED -
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Movant(s):
Guild Mortgage Company Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA LEASE TRUST
EH
Docket 40
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Gary L Brown Represented By Jenny L Doling
Joint Debtor(s):
Charline R Brown Represented By Jenny L Doling
Movant(s):
Toyota Lease Trust Represented By
11:00 AM
Trustee(s):
Kirsten Martinez
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FIRST PREMIER BANK
EH
Docket 24
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Robert Alan Sitarski Represented By Edgar P Lombera
Joint Debtor(s):
Heidi Ann Sitarski Represented By Edgar P Lombera
11:00 AM
Movant(s):
First Premier Bank Represented By William S Brody
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 12
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
(emphasis added). Here, Debtor’s statement of intention indicates that he will surrender the property. Pursuant to 11 U.S.C. § 521(a)(2)(B), the time to perform the intention indicated in the statement of intention is within thirty days of the date of the first meeting of creditors; in this case, that deadline was March 12, 2020. Therefore, either the automatic stay has terminated pursuant to § 362(h)(1)(B), due to Debtor’s failure to timely perform the action specified in the statement of intention, or the automatic stay has terminated due to § 362(c)(1), due to the subject property being surrendered and being no longer property of the estate. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Juan Diego Abril Samaniego Represented By Miguel A Valente
Joint Debtor(s):
Maura Garcia De Abril Represented By Miguel A Valente
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: 2ND CHANCE MORTGAGES INC
EH
Docket 9
Service: Improper Opposition: None
The proof of service attached to the motion indicates that the only people served with the motion were Larry Carter and Debtors’ attorney, Kevin Tang. Local Rule
4001-1(c)(1)(C) requiring service on the Chapter 7 trustee and the holder of other liens affecting the subject real property, service of the instant motion was improper. Further, the motion states at page 8 that there is an exhibit 4, but there appears to not be an exhibit 4. Therefore, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Larry M Carter Represented By Kevin Tang
Joint Debtor(s):
Deborah K Carter Represented By Kevin Tang
11:00 AM
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 10
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Amy Beth Blaskovich Pro Se
Movant(s):
The Bank of New York Mellon, f/k/a Represented By
Erin M McCartney
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: ERP OPERATING LIMITED PARTNERSHIP
EH
Docket 8
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT request under ¶ 2.
- Regarding Movant’s request to annul the automatic stay, the Bankruptcy Appellate Panel, 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."). More recently, the Bankruptcy Appellate Panel stated the following regarding the standard for annulment of the automatic stay:
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
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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 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); see also In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1055 (9th Cir. 1997) ("Many courts have focused on two factors in determining whether cause exists to grant relief from the stay: (1) whether the creditor was aware of the bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor.").
Fjeldsted cautioned that the enumerated factors are not a scorecard, but the standards
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articulated above weigh in favor of annulling the stay in this case. Movant filed a UD complaint three days prior to the petition date, but did not serve the UD complaint until after Debtor filed the instant bankruptcy. Debtor not having listed Movant or an agent in the creditor mailing matrix, it would appear that Movant did not have knowledge of the bankruptcy filing at the time the UD complaint was served.
Additionally, Movant does not appear to have taken any further actions in violation of the automatic stay and Movant promptly moved to seek relief from the automatic stay. The two primary factors articulated by the Ninth Circuit in In re Nat’l Evtl. Waste Corp. both heavily weighing in favor of annulling the automatic stay, and Debtor not having filed any 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 motion, annulling the automatic stay retroactive to the petition date.
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):
Brian R. Puza Represented By
Keith Q Nguyen
Movant(s):
ERP OPERATING LIMITED Represented By Scott Andrews
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 15
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Javier Rodriguez Represented By
George C Panagiotou
Joint Debtor(s):
Erika Rebeca Perez Gutierrez Represented By
George C Panagiotou
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 9
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Citlali Selene Ramirez Ramirez Represented By Brian J Soo-Hoo
Joint Debtor(s):
Kristina Ramirez Estanislao Represented By Brian J Soo-Hoo
11:00 AM
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
EH
Docket 15
Service: Proper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I)-(II) because Debtor had (a) three bankruptcy cases dismissed in the previous year; and (b) had a case dismissed for failure to file requirement documents. Section 362(c)(4)
(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely implies that Debtor has a higher paying job now, without any detail describing the change in Debtor’s financial circumstances. As a result, the Court is inclined to CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
11:00 AM
Movant(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JOHN ANTHONY PERCELL
EH
Docket 15
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(C)(i)(III) provides for a statutory presumption that a case was filed in bad faith if "there has not been a substantial change in the financial or personal affairs of the debtor." The Court interprets this provision as requiring a debtor to provide evidence indicating that the reasons that caused the previous case to be dismissed are not likely to reoccur in the instant case.
Here, the previous case was dismissed due to preconfirmation compliance issues. Specifically, the case was dismissed due to Debtor’s failure to timely transmit required documentation to the Chapter 13 Trustee. Here, the instant motion does not contain any evidence addressing the reason the previous case was dismissed or indicating that those issues are not likely to persist in the instant case.
The Court is inclined to CONTINUE the matter to April 15, 2020, for Debtor to file a supplemental declaration establishing the required substantial change in circumstances.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
John Anthony Percell Represented By Daniel King
Movant(s):
John Anthony Percell Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PAMELA M. BRADFORD
EH
Docket 15
Service: Proper Opposition: None
The Court having reviewed the motion, notice appearing proper and no opposition having been filed, the Court is inclined to find that Debtor has provided sufficient evidence to rebut the statutory presumption arising under 11 U.S.C. § 362(c)(3)(C)(II) (cc) that the case was not filed in good faith, and, as a result, the Court is inclined to CONTINUE the automatic stay as to secured creditors.
APPEARANCES REQUIRED.
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Movant(s):
Pamela M Bradford Represented By
James D. Hornbuckle
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
From: 4/1/20 EH
Docket 51
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 1/9/19, 7/31/19, 10/16/19, 4/13/20, 4/14/20
EH
Docket 1
- NONE LISTED -
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
9:30 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 18
On July 17, 2013 (hereinafter "Petition Date"), Arturo Rojas (hereinafter "Debtor") and Maria Pineda (hereinafter "Joint Debtor") (collectively "Debtors") filed a Chapter 7 voluntary petition. In their commencement documents, Debtors included as unsecured creditors Citibank South Dakota (hereinafter "Citibank"), owed a claim in the amount of $2,054.00, and Portfolio Recovery Associates (hereinafter "PFA"), owed a claim in the amount of $13,300.00. Dkt. No.1
On August 21, 2013, the Chapter 7 Trustee, Todd A. Frealy, reported that there were no assets to the estate and certified that the estate has been full administered. Pursuant to Rule 2002(e), a "no asset notice" was given. Concurring with the notice, no deadline to file claims was set. In re Corgiat, 123 Bankr. 338, 389 (Bankr. E.D. Cal. 1991). On October 28, 2013, the Court granted Debtors a discharge pursuant to 11 U.S.C. §727. Dkt. No. 15.
Sometime in the near past, Debtors decided to sell their real property at 2902 Poplar Cir., Rialto, CA 92376 (hereinafter the "Property"). Dkt. No. 18. Their house was purchased, and, around that time, Debtors’ Title Report notified them of liens held by Citibank and PFA on the Property. Id. Debtors allege that they were unaware of any litigation against them let alone the recording of the abstract judgments. Id.
Both liens were recorded in 2011, which was prior to Debtor’s Petition Date. Debtors
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have filed this motion to reopen this case, so they may amend their Schedule D and discharge the subject debts.
Pursuant to 11 U.S.C. § 350(b), "a case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause." "A case may be reopened on motion of the debtor or other party in interest…" Fed. R. Bankr. P. 5010.
In determining whether to reopen a case, the Bankruptcy Court may consider numerous factors, including (1) the benefit to creditors, (2) the benefit to debtor, (3) the prejudice to affected parties, (4) the availability of relief in other forums, (5) whether the estate has been fully administered, (6) the length of time between the closing of the case and the motion to reopen, and (7) good faith. In re Consol.
Freightways. Corp., 553 B.R. 396, 399 (Bankr. C.D. Cal. 2016).
In a typical "no asset" Chapter 7 case, the debtor’s failure to list a creditor does not, in and of itself, make the creditor’s claim nondischargeable. Beezley v. Cal. Land Tittle Co., 994 F.2d 1433, 1437 (9th Cir. Ct. App. 1993). In other words, where 11
U.S.C. § 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by 11. U.S.C. § 727. Id. Because Debtors’ case was a "no asset" Chapter 7 case, where there were no applicable exemptions under 11 U.S.C. § 523 nor a bar date set, a reopening of this case would be a useless gesture—it has no legal effect.
In this case, after the discharge was given under 11 U.S.C. § 727, the Debtors were not personally liable for the debts to Citibank and PFA. However, being pre- petition liens, to the extent the debts are secured by the collateral, they survive pursuant to the ride-through doctrine unless they are avoided. Debtors can avoid a lien several ways including pursuant to 11 U.S.C. § 522(f).
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For the reasons stated above, the Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
Debtor(s):
Arturo Rojas Represented By
Michael H Colmenares Kenneth D Sisco
Joint Debtor(s):
Maria Pineda Represented By
Michael H Colmenares Kenneth D Sisco
Movant(s):
Arturo Rojas Represented By
Michael H Colmenares Kenneth D Sisco
Maria Pineda Represented By
Michael H Colmenares Michael H Colmenares Michael H Colmenares Kenneth D Sisco Kenneth D Sisco Kenneth D Sisco
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 266
On July 23, 2018 (hereinafter "Petition Date"), Richard Garavito (hereinafter "Debtor") filed for a Chapter 11. In his commencement documents, Debtor identified Taylor Family Trust (hereinafter "TFT") as a secured creditor owed $1,350,000. Dkt. No. 15.
On October 3, 2018, TFT filed an Official Form 410, Proof of Claim (hereinafter "Claim 8-1"), stating that it was owed $1,372,381.82, and its claim was secured fully by the Debtor’s residence at 5065 Brooks Street, Montclair, CA 91763 (hereinafter the "Property"). Claim 8-1 was based on a note secured by a deed of trust.
The case was converted to a Chapter 7 on December 6, 2019. On February 20, 2019, the Court authorized the sale of the Property. Debtor was not able to find a buyer, and the Property was sold at foreclosure sale on May 3, 2019.
Being the senior lienholder, TC was presumably satisfied in full or largely from the sale proceeds. TC’s claim was in the amount of $55,093.21. The purchase price of the Property was $1,325,000.00 and the documentary transfer tax was
$1,457.50. Dkt. No. 266, Ex. 2.
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On March 13, 2020, Debtor filed this motion claiming that, because of
Property being foreclosed on and sold, Claim 8-1 should either be reduced in its entirety or, in the alternative, reduced substantially.
Here, movant has presented evidence of the foreclosure sale and that the Trust’s claim was paid-off in full or in large part from the sale proceeds. The burden thus shifts to TFT to provide evidence to either show it was not paid-off from the sale proceeds. Not responding to this motion, TFT has failed to meet its burden.
Furthermore, failure to posse deemed consent pursuant to LBR 9013-1(h) to the relief requested.
Based on the foregoing, the Court GRANTS this motion and disallows Claim 8-1 in its entirety.
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 Garavito Represented By Todd L Turoci
Movant(s):
Richard Garavito Represented By Todd L Turoci
11:00 AM
Trustee(s):
Steven M Speier (TR) Represented By Rika Kido
11:00 AM
Also #3 EH
Docket 265
On July 23, 2018 (hereinafter "Petition Date"), Richard Garavito (hereinafter "Debtor") filed for a Chapter 11. In his commencement documents, Debtor identified County of San Bernardino Office of the Tax Collector (hereinafter "TC") as a secured creditor owed $30,230.00. Dkt. No. 15.
On August 6, 2018, TC filed an Official Form 410, Proof of Claim (hereinafter "Claim 5-1"), stating that it was owed $55,093.21, and its claim was secured fully by the Debtor’s residence at 5065 Brooks Street, Montclair, CA 91763 (hereinafter the "Property"). Claim 5-1 was based on taxes.
The case was converted to a Chapter 7 on December 6, 2019. On February 20, 2019, the Court authorized the sale of the Property. Debtor was not able to find a buyer, and the Property was sold at foreclosure sale on May 3, 2019. However, after a few months had passed, TC foreclosed on the Property. Id. The Property was later sold on May 3, 2019. Dkt. No. 265, Ex. 2.
Being a senior lienholder, TC was presumably satisfied from the sale proceeds.
No. 265, Pg. 3. The purchase price, $1,325,000.00 of the Property was substantially greater than the Claim 5-1. Dkt. No. 265, Ex. 2. Therefore, Debtor claims that Claim 5-1 should be disallowed in its entirety.
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On March 23, 2020, after this motion was filed, TC filed an amended Official
Form 410, Proof of Claim (hereinafter "Claim 5-2"). TC states that Claim 5-2 is in the amount of $0.00. Therefore, for all practical purposes, TC has withdrawn Claim 5-1, or it has been amended y Claim 5-2.
The issue appears resolved by TC’s amendment of Claim 5-1.
Based on the foregoing, the Court DENIES the motion as moot based on the TC amendment of Claim 5-1.
APPEARANCES REQUIRED.
Debtor(s):
Richard Garavito Represented By Todd L Turoci
Movant(s):
Richard Garavito Represented By Todd L Turoci
Trustee(s):
Steven M Speier (TR) Represented By Rika Kido
11:30 AM
Docket 7
- NONE LISTED -
Debtor(s):
Kiara Gonzalez Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:18-01242 Forniss et al v. Morales et al
From: 3/6/19, 3/13/19, 5/22/19, 8/28/19, 12/4/19, 12/18/19, 1/8/20, 3/11/20,
4/1/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Stephen Richard Morales Represented By Todd L Turoci
Defendant(s):
Stephan Richard Morales Pro Se
Diane Forniss Morales Pro Se
Joint Debtor(s):
Diane Forniss Morales Represented By Todd L Turoci
Plaintiff(s):
Stephen Forniss Represented By Fritz J Firman
2:00 PM
Alfonso Forniss Represented By Fritz J Firman
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
EH
Docket 51
BACKGROUND
On February 7, 2018 (herein after "Petition Date"), Vance Zachary Johnson (hereinafter "Defendant-Debtor") filed a Chapter 11 voluntary petition. A few months later, Bankers Healthcare Group, LLC (hereinafter "Plaintiff-Creditor") filed an adversary proceeding against Defendant-Debtor.
Plaintiff-Creditor, in the adversary compliant, asked the Court to determine the dischargeability of its claim against Defendant-Debtor. Plaintiff-Creditor alleged that it loaned $514,245.00 to Temecula Valley Pain Medical Group, Inc (hereinafter "TVPMG") under material false representations made by Defendant-Debtor, who is a hundred-percent owner of TVPMG, and Defendant-Debtor willfully and maliciously injured Plaintiff-Creditor by the acts or omission in obtaining of said loan. Dkt. No. 1. Defendant-Debtor answered the complaint denying Plaintiff-Creditor’s allegations.
Dkt. No. 11.
On July 29, 2018, Plaintiff-Creditor and Defendant-Debtor submitted a Joint Status Report. Dkt. No. 13. A Scheduling Order was entered by the Court, setting the last day for discovery to be completed on January 31, 2019. Dkt. No.14.
Before the deadline was reached, Plaintiff-Creditor and Defendant-Debtor filed a stipulation asking for discovery deadline be extended to March 31, 2019. Dkt.
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No. 20. The Court granted the stipulation. Dkt. No. 21.
For the next few months, Plaintiff-Creditor and Defendant-Debtor had multiple hearings about Plaintiff-Creditor’s motion for summary judgment. On August 28, 2019, the Court denied the Plaintiff-Creditor’s motion for summary judgment. A Status Report and stipulation to continue the Status Conference to March 25, 2020 was filed. Dkt. No. 46.
On March 26, 2020, Plaintiff-Creditor filed this motion to extend the discovery deadline. Dkt. No. 51. To support this motion, Plaintiff-Creditor claims that Defendant-Debtor failed to comply with its discovery request: (1) Defendant Debtor produced incomplete set of bank account statements, which where produced a month later than Defendant-Debtor stated it would be delivered, and (2) Defendant-Debtor had not listed preferred times for him to be deposed by Plaintiff-Creditor. Id. at Pg.
3-5. On April 15, Defendant-Debtor filed a response to this motion. Defendant-Debtor "does not oppose the relief requested…but disputes altogether he has not fully cooperated with discovery…" Dkt. No. 54.
DISCUSSION
Under Fed. R. Bankr. P. 16(b)(4), a schedule may be modified only for good cause and with the judge’s consent. "Good cause" means the scheduling deadlines cannot be met despite the party’s diligence.
Here, the Defendant-Debtor has filed a conditional non-opposition to Plaintiff-Creditor’s request, which is based on allegations of delay by Debtor and other problems with discovery.
Opposition: Defendant-Debtor Service: Proper
For the reasons stated above, the Court GRANTS this motion, extended the discovery deadline for ninety days to June 30, 2020.
2:00 PM
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):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20
Also #6 EH
Docket 1
4/15/20
Opposition: None Service: Proper
Pursuant to the stipulation agreement between Bankers Health Care Group, LLC, and Vance Zachary Johnson, the Court GRANTS this stipulation to continue Status Conference to July 1, 2020. A Status Report is due on June 24, 2020.
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):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
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) Represented By Monica Y Kim
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 1/9/19, 7/31/19, 10/16/19, 4/13/20, 4/14/20, 4/15/20
EH
Docket 1
- NONE LISTED -
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
9:30 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
Also #3 EH
Docket 55
On March 21, 2017, Margarito Martinez ("Plaintiff") filed a Chapter 13 voluntary petition. On July 19, 2017, Plaintiff’s Chapter 13 plan was confirmed.
On March 15, 2019, Debtor filed a complaint against Cesar Garza ("Garza"), Noe Pelayo, George Macias ("Macias"), Flor Valladares, Henry Gonzalez, West Coast Plus Realty, Inc., Grand Capital Group, and M&M Associates (collectively, "Defendants") for (1) turnover of property; and (2) conversion. On October 18, 2019, default was entered against Defendants. The only party that filed an answer was Macias. Plaintiff took no further action with regard to M&M Associates. The Court entered default against the remainder of Defendants on February 19, 2020. On February 20, 2020, Plaintiff filed a motion for default judgment.
Plaintiff’s complaint relates to attempts to refinance his mortgage during 2016. The
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complaint asserts that "Garza convinced Plaintiff that he should instead sell his home to a third party who would allow [Plaintiff] to continue to reside in the property and eventually repurchase the property." Garza arranged for four individuals to purchase the property, but, as part of the purchase, additional cash in the amount of $21,750 would have to be paid by Plaintiff. Paragraph 21 of the complaint states that: "Garza told Plaintiff that he was not allowed to put the money directly into escrow and that he instead would have to make payments to different entities and Garza would then deposit these funds into the open escrow." Subsequently, Plaintiff made six payments from a 401k loan, totaling $21,378 (the "Funds"), four of which were made to entities related to Garza, and two of which were made to individuals allegedly associated with Garza.
The subsequent history of the Funds is less than clear. The final payment was made approximately four months before Plaintiff filed the instant bankruptcy petition.
According to the complaint, Garza claimed to be holding the Funds in escrow at the time the bankruptcy petition was filed, repeatedly stated that he would return the Funds, but now Garza has admitted that he spent the funds on a new business venture.
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
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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.
The Court notes that Plaintiff has used two different service addresses for this action:
(1) 15526 Amar Rd., La Puente, CA 91744 (for Garza, Henry Gonzalez, Flor Valladares, and Grand Capital Group); and (2) 1731 Pass and Covina Rd., La Puente, CA 91744 (for Noe Pelayo and West Coast Plus Realty). Plaintiff has not provided any evidence establishing the source of appropriateness of these service addresses.
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.").
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Here, the complaint includes two causes of action: (1) turnover of property of the estate; and (2) conversion.
Regarding the cause of action for turnover, 11 U.S.C. § 542(a) states:
Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
The standard for a turnover action is well established:
"To prevail in a turnover action under § 542, the party seeking turnover must establish (1) that the property is or was in the possession, custody or control of an entity during the pendency of the case, (2) that the property may be used by the trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate."
In re Bailey, 380 B.R. 486, 490 (B.A.P. 6th Cir. 2008); see also In re Newman, 487
B.R. 193 (B.A.P. 9th Cir. 2013). The complaint contains sufficient evidence to establish the first and third prongs of this test. Regarding the first prong, the complaint states, in paragraph 26, that: "[a]t the time the Bankruptcy Case was filed, Garza claimed to be holding the Funds in escrow for Plaintiff." Regarding the third prong, the value of the funds at issue, and the absence of any claim secured by the Funds, sufficiently establishes that the Funds are of more than inconsequential value to the estate. Regarding the second prong, the Court concludes that the allegations in the
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complaint are sufficiently clear to establish that the Plaintiff had some property interest in the Funds and that that property interest could have been exempted.
The Court notes, however, an issue with the request for turnover. First, while the complaint requests turnover as to all defendants, paragraph 26 of the complaint indicates that it was specifically Garza who had possession of the Funds at the time of the bankruptcy filing. The complaint does not contain any allegations that any other defendant had possession or control of the Funds postpetition, and, as a result, only a judgment against Garza appears appropriate.
Regarding the cause of action for conversion, "[t]he elements of conversion are (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by wrongful act inconsistent with the property rights of the plaintiff; and
(3) damages." In re Emery, 317 F.3d 1064, 1069 (9th Cir. 2003). "It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converted has applied the property to his own use." Shopoff & Cavallo LLP v. Hyon, 167 Cal. App. 4th 1489, 1507 (Cal. Ct. App. 2008). Here, Plaintiff has adequately alleged (a) a right to possession of the funds; (b) Garza’s conversion of the funds to his own personal use; and (c) damages. As was stated in the preceding paragraph, however, the only defendant alleged to have committed conversion in the complaint is Garza.
Nevertheless, the Court notes that it has an independent duty to consider whether subject-matter jurisdiction is present. It is not clear that the Court has jurisdiction to enter a money-judgment by way of default on a state law, post-confirmation claim, in a Chapter 13 case.
Amount of Damages
Plaintiff’s complaint contains sufficiently detailed allegations to substantiate the
$21,378 in actual damages. The complaint and the motion for default judgment do not, however, provide the Court with any argument or basis upon which to award
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punitive damages, attorney’s fees, or prejudgment interest. For that reason, the Court is inclined to limit the judgment to $21,378.
Conditioned on Plaintiff providing adequate evidence establishing proper service, the Court is inclined to GRANT the motion and issue a default judgment as to Garza in the amount of $21,378 on the cause of action for turnover, and to DENY the motion as to the remaining defendants. Plaintiff to address the Court’s subject matter jurisdiction to enter a money judgment on the claim for conversion.
APPEARANCES REQUIRED.
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
11:00 AM
Movant(s):
Margarito Martinez Represented By Christopher J Langley
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
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Adv#: 6:19-01051 Martinez v. Garza et al
From: 5/23/19, 8/22/19, 10/17/19, 12/19/19, 2/20/20, 3/19/20
Also #2 EH
Docket 1
- NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
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Grand Capital Group Pro Se
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:20-01023 Zurich American Insurance Company v. Zhang
EH
Docket 1
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Defendant(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Plaintiff(s):
Zurich American Insurance Represented By Lincoln V Horton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 & #7 EH
Docket 108
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
(2) the claim of Bank One, filed on February 28, 2017, in the amount of $4,095
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("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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.
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As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
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The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 109
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
(2) the claim of Bank One, filed on February 28, 2017, in the amount of $4,095 ("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the
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amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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.
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As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
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The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 & #6 EH
Docket 107
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
(2) the claim of Bank One, filed on February 28, 2017, in the amount of $4,095
11:00 AM
("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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.
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As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
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The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 16
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Thompson Harris Cooper VI Represented By Sundee M Teeple
Joint Debtor(s):
Dawnetra Genene Cooper Represented By Sundee M Teeple
Movant(s):
Thompson Harris Cooper VI Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple
Dawnetra Genene Cooper Represented By Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Thompson Harris Cooper VI Represented By Sundee M Teeple
Joint Debtor(s):
Dawnetra Genene Cooper Represented By Sundee M Teeple
Movant(s):
Thompson Harris Cooper VI Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple
Dawnetra Genene Cooper Represented By Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 27
On August 5, 2019, Mario & Nona Chiong ("Debtors") filed a Chapter 13 voluntary petition. On November 20, 2019, Debtors’ Chapter 13 plan was confirmed.
On October 11, 2019, LendingClub Corporation ("Creditor") filed a proof of claim for an unsecured claim in the amount of $30,064.10 ("Claim 24"). On March 10, 2020, Debtor filed an objection to Claim 24. Debtor argues that Claim 24 is barred by the statute of limitations. Creditor did not file any opposition.
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
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." 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
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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 24 states that the basis of the claim is an "unsecured loan." Therefore, it appears that Claim 4 fits within the category established by CAL. CODE CIV. P. § 337, and that the statute of limitations is four years. The proof of claim identifies a last payment date of November 4, 2014. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 24 is unenforceable.
The Court is inclined to SUSTAIN the objection, DISALLOWING Claim 24 in its entirety..
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):
Mario Chiong Represented By Paul Y Lee
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Joint Debtor(s):
Nona Chiong Represented By
Paul Y Lee
Movant(s):
Mario Chiong Represented By Paul Y Lee
Nona Chiong Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 3/3/20, 3/12/20 EH
Docket 19
Service: Proper Opposition: Yes
Debtor’s opposition indicates that postpetition arrears listed by Movant are incorrect because Debtor has made postpetition plan payments directly to the Chapter 13 Trustee. Nevertheless, it appears that the second payment made by Debtor was only a partial payment. Parties to apprise the Court of the status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Movant(s):
Deutsche Bank National Trust Represented By
11:00 AM
Trustee(s):
Angie M Marth Jacky Wang
Rod Danielson (TR) Pro Se
11:00 AM
Docket 94
On November 11, 2015 ("Petition Date"), Eric Kessell ("Debtor") filed for Chapter 13 voluntary petition. In his commencement documents, Debtor listed the Internal Revenue Service ("IRS") as an unsecured creditor having a claim in the amount of $110,516.00—$65,266.00 not priority and 45,250.00 priority. On January 27, 2016, the IRS filed a claim, "Claim 5-1."
However, there was a discrepancy between what Debtor stated in his commencement document and what the IRS stated in its claim. The IRS listed
$94,707.90 of unsecured priority claim and $16,029.92 of unsecured general claim, totaling $110,737.82.
Debtor’s Chapter 13 plan, which was confirmed on December 29, 2015, scheduled to pay the unsecured priority claim over sixty months at a monthly payment of $754.17. Non-priority unsecured creditors where estimated to get a hundred cents on the dollar. Pursuant to the Chapter 13 plan, Debtor stated he will pay all post- confirmation tax liabilities in a timely manner directly to the appropriate taxing authorities.
While paying his pre-petition tax liability, the IRS alleges that Debtor failed to pay his post-petition taxes:
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Taxable Year | Taxes Due for that Year | Remaining Balance |
2015 | $25,712.00 | $29,775.96 |
2016 | $24,995.00 | $23,726.56 |
2017 | $20,669.00 | $24,019.91 |
2018 | $21,465.00 | $23,422.44 |
2019 | $23,611.00 | Not Calculated |
Specifically, the IRS claims that Debtor failed to make estimated payments for the taxable year 2019. The IRS states that Debtor’s alleged failure falls under 11 U.S.C. § 1307(c) as "bad faith" and it provides the "cause" to request the Court to dismiss Debtor’s Chapter 13 petition and implement a 180-day refiling bar.
I. Bad Faith
11 U.S.C § 1307(C):
"…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…or dismiss a case under this chapter…for cause, including…"
"A ‘party in interest’ is any party ‘who has an actual pecuniary interest in the case,’ ‘who has a practical stake in the outcome of a case,’ or ‘who will be impacted in any significant way in the case.’" In re Hardy, 589. B.R. 217 (Bankr. D. DC. 2018)
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(citing In re Sobczak, 369 B.R. 512, 518 (B.A.P. 9th Cir. 2007)). In this case, the IRS has standing because it has an actual pecuniary interest and it is a creditor. (In re De la Salle, 461 B.R. 593 (B.A.P 9th Cir.) (discerning no reason why creditors should not be included within the scope of party in interest for purposes of 11U.S.C. § 1307(c).
Subsection 1307(c) then proceeds to list eleven circumstances that would constitute cause. However, ‘bad faith’ is not listed. Nonetheless, bankruptcy courts "routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause.’" In re Goodvin, 548 B.R. 806, 811 (Bankr. N.D. IA. 2016) (quoting Marrama v. Citizens Bank, 549 U.S. 365, 372 (2007)).
Bad faith is determined by the totality of the circumstances test. In re Craighead, 377 B.R. 648, 654 (Bankr. N.D. Cal. 2007). Bankruptcy courts should consider the following circumstances in determining a cause for dismissal under Chapter 13 petition with prejudice for bad faith: (1) whether the debtor misrepresented facts in her petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed her Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filing and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. Ct. App. 1999).
Thus, the Court GRANTS this motion because there is cause shown, the nonpayment of post-petition taxes, to dismiss Debtor’s case with a re-filing bar of 180-days. Pursuant to LBR 9013-1(h), the Court may deem a failure to timely file and serve documents as consent to the granting or denial of the motion. Debtor, not responding to this motion, is deemed to have consent it.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Eric Kissell Represented By
William J Howell
Movant(s):
UNITED STATES OF AMERICA Represented By
Najah J Shariff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 18
Background:
On January 31, 2020 ("Petition Date"), Corey Jason Gomes ("Debtor") filed a voluntary Chapter 13 petition. In his Schedule A/B of his commencement documents, Debtor stated he owned a 2017 Toyota Prius (hereinafter the "Vehicle") located at 27568 Campana Circle Temecula, CA 92591 ("Debtor’s Residence"). On the Petition Date, Debtor valued the Vehicle at $13,928.00. Dkt. No. 1, Schedule A/B. Debtor, also, listed Toyota Financial Services (hereinafter "Toyota") as having a claim, valued at $20,526—$13,928.00 secured and $6,598.00 unsecured—secured by the Vehicle.
On February 19, 2020, Debtor filed a notice of motion-and-motion for order determining value of collateral ("Motion"). Debtor prays for the court to value the Vehicle and claim it secures per his declaration. Debtor provided a billing statement from Toyota reaffirming the value of its claim on January 2, 2020. Dkt. No. 18, Ex. 1. Debtor, also, provided a copy of a value generated by Kelly Blue Book of 2017 Toyota Prius Three Touring Hatchback 4D, which ranges from $12,992 to $14,563.
On March 6, 2020, Toyota filed an opposition to this motion. Pursuant to LBR 9013-1(f), a response on the moving party must be filed and served no later than fourteen days before the date designated for the hearing. Toyota’s response was filed within six days of the designated hearing date. Failure to timely file and serve an opposition may be deemed by the court to be consent to the granting or denial of the motion. LBR 9013-1(h).
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In its response to this motion, Toyota requests a continuation of thirty days to conduct a formal inspection and appraisal. Dkt. No. 23. Toyota estimates the current fair market value of the property to be $19,175.00. Id. Toyota then argues that the private party value provided by Kelly Blue Book is inconsistent with the pertinent code section, which requires the value to be based on what a retail merchant would charge for the property. Id. In the alternative, Toyota argues that if it be forced to accept the Debtor’s valuation, its security interest will be severely diminished. Id.
Applicable Law:
11 U.S.C §506(a)(2):
If the Debtor is an individual in a case under Chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. [italicized for emphasis]"
In In re Morales, the United States Bankruptcy Court for the Central District of California 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 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, 387 B.R. at 46. The language of § 506(a)(2) provides further support for the use of retail values rather than private party values in the first sentence that states replacement value should be calculated "without deduction for costs of sale
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or marketing." § 506(a)(2); Morales, 387 B.R. at 46. Although "replacement value" is modified with respect to property acquired for personal use in the second sentence of
§ 506(a)(2), the rule regarding costs of sale or marketing is not modified and is therefore still applicable. § 506(a)(2); Morales, 387 B.R. at 46. Consequently, in contrast to private party values, "the retail value better approximates a price that includes the ‘costs of sale and marketing,’" even if downward adjustments must be made to accommodate a less then excellent or optimal condition of a vehicle.
Morales, 387 B.R. at 46.
Here, Debtor incorrectly uses the private party.
Tentative:
The Court is inclined to DENY the Motion. APPEARANCES REQUIRED.
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Movant(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/2/20 EH
Docket 13
4/2/20
BACKGROUND
On February 19, 2020 ("Petition Date"), Jennifer Isabella Solares (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
In her commencement documents, Debtor stated that she owned a 2017 Toyota Camry SE 2017 (hereinafter the "Camry"). Dkt. No. 1. The Camry was valued at 8,288.00 and it was secured a claim owed by Americredit Financial Services, Inc. doing business as General Motors Financial (hereinafter "GM") in the amount of
$21,762.91, leaving an unsecured amount of $13,474.91. Id.
GM, in its Form 410, Proof of Claim 3-1, valued the Camry at $11,150.00 and its secured amount of the claim at the same amount, leaving $15,174.43 unsecured for a total claim in the amount of $26,324.43. GM provided the Retail Installment Sale Contract, the Certificate of Title, and the amount owed as of the Petition Date. Claim 3-1.
Debtor does not question the validity of the Claim 3-1. However, Debtor has filed this motion in order to determine the extent to what amount is secured and unsecured. Debtor’s Chapter 13 plan proposes to bifurcate Claim 3-1 and pay the secured portion of the claim through the plan. Dkt. No. 13.
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DISCUSSION
The Burden of Proof
A debtor bears the burden of proof on the issue of valuation under 11. U.S.C. § 506(a). In re Ahmed, 2011 Bankr. Lexis 1000, *4 (Bankr. N.D. Cal. 2011) citing In re Finnegan, 358 B.R. 644, 649 (Bankr. M.D. Penn. 2006).
Valuation Standard
11 U.S.C. § 506(a)(2):
"If the debtor is an individual in a case under Chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determine based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined."
Valuation of the Camry
To strengthen her motion to set the value for the vehicle, Debtor provided a valuation report from Kelly Blue Book (hereinafter "KBB"). Dkt. No. 13, Ex. B. The Camry’s private party value was $8,288.00.
In re Morales, the court concluded that retail values of vehicles should be calculated by adjusting the Kelly Blue Book or N.A.D.A Guide retail value by a reasonable amount based on evidence presented. 387 B.R. 36 (Bankr. C.D. Cal. 2008). "The burden in proving the reasonableness of any deviation from the guide retail value rests with the debtor because the debtor has the best access to information about the condition of the vehicle." Id. at 45. Debtor did not provide the retail value of the Camry but decided to value it using the private party value. Debtor did not provide any additional evidence to suggest why the private party value should be used instead
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of the retail value.
Opposition: None Service: Proper
CONTINUE the hearing for the Debtor to provide the retail value. APPEARANCES REQUIRED.
Debtor(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
Movant(s):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 29
- NONE LISTED -
Debtor(s):
Jackie M Zapata Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/7/19, 12/19/19, 2/20/20 Also #17 & #18
EH
Docket 52
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/3/19, 11/7/19, 12/19/19, 2/20/20
Also #16 & #18 EH
Docket 44
On April 15, 2019, Mark & Elizabeth Swartz ("Debtors") filed a Chapter 13 voluntary petition. On June 21, 2019, The Bank of New York Mellon f/k/a The Bank of New York as successor Indenture trustee to JPMorgan Chase Bank, National Association for CWHEQ Revolving Home Equity Loan Trust, Series 2006-F ("Creditor") filed a proof of claim for a secured claim in the amount of $157,959.06 ("Claim 5").
On July 10, 2019, Debtors filed an objection to Claim 5. Debtors argued that the information filed in support of Claim 5 is inadequate pursuant to the Federal Rules of Bankruptcy Procedure, and that, as a result, Creditor has failed to meet its burden of proof. At the hearing of August 22, 2019, the Court noted that there appeared to be an error on the proof of service which resulted in Creditor’s notice address being misstated. For that reason, the Court continued the matter for proper service.
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On August 30, 2019, Debtors filed a renewed objection to Claim 5. The Court notes that notice and service are now proper.
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
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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 because such claim is contingent or unmatured;
FED. R. BANKR. P. Rule 3001(c)(2) identifies certain required information that a claimant must attach to a proof of claim in order for the claim to be afforded prima facie validity. In particular, the Court notes that Rule 3001(c)(2)(A) and (C) provide requirements related to the itemization of non-principal amounts and escrow amounts, respectively.
The Court finds Debtors’ assertion that the supporting information is inadequate to be well-founded. The mortgage proof of claim attachment includes the following information. Part 2 identifies a principal balance of $98,982.98, interest due of
$55,486.25, and fees and costs of $3,489.83. Part 3 identifies a pre-petition arrears of
$87,692.60, of which $84,202.77 was principal and $3,489.83 was the aforementioned costs. And Part 4 asserts that the month payment includes $607.39 for principal and interest and $549.90 for escrow.
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The two figures which do not appear to be justified in the supporting documentation are the $55,486.25 in interest and the $549.90 monthly payment for escrow. The Court notes that the loan payment history spreadsheet provided by Creditor does not contain any itemization for interest or escrow, and, furthermore, the entire column relating to accrued interest balance and accrued escrow balance is zeroed out.
Because Creditor has failed to separate principal, interest, and escrow, as directed by FED. R. BANKR. P. Rule 3001(c)(2), and, noting that Debtors have declared that there is no escrow account relating to the second mortgage, the Court is unable to determine the validity or amount of the prepetition default identified in column G of the loan payment history. The Court has also not been provided with any itemization or calculation of the interest amount, alleged to be $55,486.25.
As a result, the Court is inclined to reduce Claim 5 to $102,472.81, representing the principal balance and fees and costs due in part 2 of the loan payment history, with a prepetition arrearage amount of $0.
APPEARANCES REQUIRED.
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
11:00 AM
Movant(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Elizabeth M Swartz Represented By Joseph A Weber Joseph A Weber Fritz J Firman Fritz J Firman
PYOD LLC Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/11/19, 8/22/19, 10/3/19, 11/7/19, 12/19/19, 2/20/20
Also #16 & #17 EH
Docket 15
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Humberto Picciotti Represented By Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Freddy Castrejon Represented By Todd L Turoci
Joint Debtor(s):
Sarah Louise Castrejon Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Theodore Cramer Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tina M Gibbons Sr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Patricia Rae Wedge Represented By Kevin Tang
Joint Debtor(s):
Michael D Wedge Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Stephanie Susan Solorio Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Arlin Sanchez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Doreen M. Coronado Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tawny E Valdez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Manuel Sanchez Tejeda Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Wilma Vie Prodigalidad Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Martin Sanchez-Flores Represented By Andrew Nguyen
Joint Debtor(s):
Pamela Sanchez Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Marie Amelia Robles Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Louis Anthony Coffin Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Troy Brooks Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert D. Warren Represented By Kevin Tang
Joint Debtor(s):
Monica Vargas Restrrepo Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jeff Book Represented By
Eric C Morris
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Franco Loli Represented By
Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David Hiram Yopp Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 96
- NONE LISTED -
Debtor(s):
Katrina Renee McDowell Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 87
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 84
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Gloria Simmons Represented By Bruce A Wilson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
- NONE LISTED -
Debtor(s):
La Quetta Delaine Bush Simmons Represented By
Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
- NONE LISTED -
Debtor(s):
Rudy Michael Castillo Represented By Nicholas M Wajda
Joint Debtor(s):
Monica Michelle Castillo Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 25
- NONE LISTED -
Debtor(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
John Charles Ballard Represented By Julie J Villalobos
Joint Debtor(s):
Denise J. Ballard Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Eugenio Giuseppe Mannella Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
CASE DISMISSED 3/14/19
EH
Docket 48
- NONE LISTED -
Debtor(s):
Alfredo N Adriano Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LCC
From: 2/11/20, 3/10/20 EH
Docket 59
Service: Proper Opposition: Late
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Brenda Fleming Bell Represented By Suzette Douglas
Movant(s):
NewRez LLC dba Shellpoint Represented By Kirsten Martinez Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 74
Service: Proper Opposition: None
Parties to update Court on status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Movant(s):
U.S BANK NATIONAL Represented By Sean C Ferry Theron S Covey Eric P Enciso
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT:NUVISION FEDERAL CREDIT UNION
EH
Docket 38
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. NuVision Federal Credit Union (hereinafter "NuVision") claims that post-petition mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtor has not opposed the motion. Thus, she has not met her burden. Furthermore, pursuant to LBR 9013-1(h), failure to timely file and serve documents may be deemed as consent to the Court to grant or deny the motion. The Court is inclined to GRANT
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relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Edwina Brewer Represented By Brian J Soo-Hoo
Movant(s):
NuVision Federal Credit Union Represented By Alana B Anaya
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 32
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Capital One Autor Finance (hereinafter "Capital One") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Lien and Title Information, the Security Agreement, Kelly Blue Book Value, and current value of the claim, Capital One has shown there is no equity and that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds.,
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16th ed.). Capital One has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtor has not opposed the motion. Thus, she has not met her burden. Furthermore, pursuant to LBR 9013-1(h), failure to timely file and serve documents may be deemed as consent to the Court to grant or deny the motion. The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Regina Huber Represented By Alon Darvish
Movant(s):
Capital One Auto Finance, a division Represented By
Cheryl A Skigin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NAVY FEDERAL CREDIT UNION
EH
Docket 17
- NONE LISTED -
Debtor(s):
Franco M Romano Represented By David L Nelson
Movant(s):
Navy Federal Credit Union Represented By
Diana Torres-Brito
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 9
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Americredit Financial Services, Inc. doing business as GM Financial (hereinafter "GM") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Certificate of Title, Retail Installment Sale Contract, and NADA Guides Value Report, GM has shown there is no negative equity and its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must
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be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). GM has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtors have not opposed the motion. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Caleb Gervin Represented By
Christopher Hewitt
Joint Debtor(s):
Ashley Gervin Represented By Christopher Hewitt
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
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Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 8
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Ford Motor Credit Company (hereinafter "Ford") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Title Details, Retail Installment Sale Contract, and NADA Guides Value Report, Ford has shown there is no equity and that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds.,
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16th ed.). Ford has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtor has not opposed the motion. In the alternative, Debtor’s Statement of Intention shows that Debtor will surrender the 2018 Ford Fusion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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 R Reza Represented By
Paul Y Lee
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 8
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. American Honda Finance (hereinafter "Honda") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Title Details, Retail Installment Sale Contract, and NADA Guides Value Report, Honda has shown there is no equity and that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds.,
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16th ed.). Honda has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtors have not opposed the motion. In the alternative, Debtors’ Statement of Intention shows that Debtors will surrender the 2018 Honda Accord. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d) (2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Juan J Castro Represented By
Francis Guilardi
Joint Debtor(s):
Sandra Aleman Represented By Francis Guilardi
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Larry D Simons (TR) Pro Se
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MOVANT: ANGELITA KURMEN
EH
Docket 16
Service: Proper Opposition: None
On March 23, 2020 (hereinafter "Petition Date"), Angelita Kurmen (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
Debtor had one prior Chapter 13 voluntary petition, case number 6:19-bk-20243-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, Debtor failed to file certain required documents. At the confirmation hearing, Debtor had not provided (1) Federal and State Tax Returns, (2) plan payment at the 11 U.S.C.
§341(a) meeting of the creditors, (3) nor a Secured Debt Payment History Declaration. Also, Debtor’s counsel advised that Debtor wanted a voluntary dismissal. For those reasons stated, the Court dismissed the case. Such dismissal, under 11 U.S.C. §362(c) (3)(B), results in this case being presumed to not be filed in good faith as to all creditors. In re Spahi, 2010 Bankr. Lexis 5013, *7-*8 (Bankr. C.D. Cal. 2010).
To overcome the presumption of this case not being filed in good faith, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the
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mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor states that she was on a "tight budget" in the Prior Case. She had separated from her husband and was living primarily on her husband’s support to meet her living expenses. With regard to this petition, Debtor has moved back in with her husband, and they are now working on their marriage. Debtor’s Prior Case Schedule I does show that Debtor was working and earning $1,000 per month, and she was receiving $2,500.00. This collaborates Debtor’s claim.
In addition, in this case, Debtor has included her husband’s income in this petitions’ Schedule I, husband earns $7,170.00 monthly, which is a significant change in Debtor’s financial condition. Thus, Debtor’s has established, by clear and convincing evidence, that this case was filed in good faith. Thus, the Court is inclined to GRANT the motion. The stay remains in effect against 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):
Angelita Kurmen Represented By Rebecca Tomilowitz
Movant(s):
Angelita Kurmen Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
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Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: RORYE JAMES MOSLEY SR
EH
Docket 14
Service: Improper Opposition: None
On March 23, 2020 (hereinafter "Petition Date"), Rorye James Mosley, SR (hereinafter "Debtor") filed a Chapter 13 voluntary petition.
Debtor had one prior Chapter 13 voluntary petition, case number 6:18-bk-13481-MH ("Prior Case"), pending and dismissed within the one-year period. In the Prior Case, Debtor failed to perform under a confirmed plan, which led to the Trustee filing a motion to dismiss because of a delinquent plan payment in the amount of $1,164.00. Debtor opposed the motion, claiming he mailed his plan payment on time; however, because he placed the wrong address on the payment, it was returned to him. Debtor then provided a copy of a new cashier check which he purported to have mailed in his opposition.
At the time of the hearing, the cashier check "did not post" to the account deeming it delinquent. The Court then proceeded to dismiss the case. Such dismissal, under 11
U.S.C. §362(c)(3)(B), results in this case being presumed to not be filed in good faith as to all creditors. In re Spahi, 2010 Bankr. Lexis 5013, *7-*8 (Bankr. C.D. Cal. 2010).
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In addition, in regard to the Prior Case, Carrington Mortgage Services, LLC (hereinafter "Carrington") filed a motion for relief from the automatic stay with respect to real property located at 40015 Tinderbox Way, Murrieta, CA 92562 (hereinafter the "Property"). Carrington and Debtor filed a stipulation agreement providing adequate protection for Carrington and continuing the stay on the Property. However, such action, under 11 U.S.C. §362(C)(3)(B), results in this case being presumed to not be filed in good faith as to Carrington. Id.
Pursuant to the Miscellaneous Instructions of the Court, if in the prior case, a secured creditor filed a motion from relief from the automatic stay, the Debtor must serve the secured creditor’s counsel. In Debtor’s proof of service, he served Carrington but not its counsel:
Prober & Raphael, A Law Corporation 20750 Ventura Boulevard #100 Woodland Hills, CA 91364
To overcome the presumption of this case not being filed in good faith, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
Debtor states that he was unable to make his play payments on time because he became forgetful while taking care of his sick mother. Dkt. No. 14, Decl. of Rorye Mosley. Debtor also mentioned that his mother’s health has improved, and, if it deteriorates again, his siblings would help. Id.
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtor has not provided detailed, competent, evidence sufficient to rebut the presumption of bad
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faith. Specifically, there is no detail nor supporting evidence as to what ailment Debtor’s mother has or had. Debtor did mention that his adult daughter helped with the care of his ailing mother. How was her help insufficient and how would his siblings’ help be sufficing?
Debtor’s statements lacking detail are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith. Furthermore, service was improper because Debtor failed to serve Carrington’s counsel. Thus, the Court is inclined to CONTINUE the motion, so Debtor can address the Court’s concerns.
APPEARANCES REQUIRED.
Debtor(s):
Rorye James Mosley Sr. Represented By Todd L Turoci
Movant(s):
Rorye James Mosley Sr. Represented By Todd L Turoci Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:30 AM
From: 3/4/20 EH
Docket 105
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Sunyeah Group Corporation MOVANT: KIPPARTNERS, LP
From: 3/24/20 EH
Docket 45
Landlord Kippartners, L.P. ("Movant") seeks relief from the automatic stay to enforce its state court judgment entered October 30, 2019 ("Judgment"), arguing that title to Debtor’s personal property remaining in Movant’s real property as of the petition date of December 30, 2019, vested in Movant on December 31, 2019, pursuant to the Stipulation for Judgment or Dismissal ("Stipulation"), which Movant argues was adopted by the Judgment. The Motion does not address the factors set forth in In re Curtis, 40 B.R. 795, 799-800 (D. Utah 1984), for evaluating a request to lift the stay to pursue a non-bankruptcy action. The Court nonetheless reviews Movant’s
arguments.
The Court agrees the Judgment is not controlling, as a review of the Judgment, the Stipulation and the underlying settlement agreement dated April 16, 2019, ("Agreement") make clear. The Stipulation essentially provides two alternative mechanisms by which Movant and Debtor agreed to resolve Debtor’s physical tenancy: (1) voluntarily, by Debtor’s departure on or before December 31, 2019, as reflected in paragraph 2 of the Stipulation, which paragraph also includes Debtor’s agreement to surrender its right to any personal property remaining on the premises after December 31, 2019, or (2) not voluntarily, under paragraph 3 of the Stipulation, by Movant obtaining a judgment for possession upon Debtor’s default under the terms of the Agreement; paragraph 3 does not contain any deemed abandonment
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language. Ultimately, Debtor left involuntarily, as upon Debtor’s breach Movant obtained the Judgment and a subsequent writ of possession ("Writ"), and Debtor was evicted on or about December 19, 2019.
There has been no analysis, argument or evidence presented that it was the intent of the parties or otherwise the contractual agreement that the deemed abandonment of the Debtor’s personal property in paragraph 2 of the Stipulation was also effective upon a forced eviction after judgment of possession, and the plain reading of the Stipulation gives no basis for such a conclusion. Moreover, the Judgment similarly only grants possession as to the real property along with a money judgment, and the Writ expressly grants possession of real property and expressly not personal property. Simply stated, to the extent the Debtor’s agreement to abandon its personal property was independent of having until December 31, 2019 to vacate the premises,
which does not appear to be the case, there is no legal or factual basis to conclude that by the Judgment and/or the Writ the state court vested ownership in the personal property in Movant as of December 31, 2019 (or at any other time). This conclusion is buttressed by the Debtor’s presumed bargained for benefit of having until December 31, 2019 to remove the personal property, which the record reflects is not easily moved, when the Debtor has not been able to access its former business premises to remove the personal property since December 19, 2019. Concededly the Judgment does reference the Stipulation (see the award for attorneys’ fees and the minute order), but certainly does not approve the Stipulation whole cloth or the abandonment provision, and is otherwise limited as set forth above.
As to Movant’s Section 362(b)(10) argument, that section applies expressly to the stated term of the lease, which in this case does not expire until 2027, and the lease does not appear to have been amended. As to Movant’s argument under Section 365(d)(4) raised in the Reply, the Movant has not sought any relief under Section 365(d)(4).
As to Debtor’s argument that any transfer of interest is avoidable, the Court notes that Debtor has not filed an avoidance action nor obtained a TRO.
The Court notes all of this may be largely moot as the parties seem to be in agreement, at the end of the pleadings, that personal property remaining after the sale can be removed during a two-week period.
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Given that the Court declines to adopt Movant’s argument that the Judgment is controlling, and for the reasons set forth above and in Debtor’s opposition pleadings, the tentative is to DENY the motion.
APPEARANCES REQUIRED
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
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Also #14 EH
Docket 56
BACKGROUND
On September 26, 2011 ("Petition Date"), Maximino Romero Torres (hereinafter "Debtor") and Rebecca Anne Torres (hereinafter "Joint Debtor") (together hereinafter "Debtors") filed for Chapter 7 voluntary petition.
In their commencement documents, Debtors listed their residence at 5975 Merced Road, Oak Hills, California 92344 (hereinafter the "Property"). The value of the Property was listed at $60,500.00, and the amount the Debtors’ homestead exemption, under Cal. Code Civ. Proc. §430(b)(1), in the Property was $42,303.71, the same amount as the secured claim on the Property owed by Chase Home Finance (hereinafter "Chase").
On March 21, 2011, Debtors amended their Schedule B and Schedule C. Dkt.
Nos. 17 and 18. However, Debtors left the Property’s value and exemption amount unchanged. Id. On May 19, 2011, Debtors received a discharge. The case was subsequently closed on May 23, 2011.
On February 15, 2019, Debtors filed a motion to reopen their case to avoid a lien against their Property (hereinafter "First Motion to Reopen"). Dkt. No. 25.
Debtors, in their First Motion to Reopen, stated that they were unaware of an abstract
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lien judgment placed on the Property on September 21, 2009, filed by Ford Motor Credit Company, LLC (hereinafter "FMC") and entered by Superior Court of California, County of San Bernardino.
Debtors’ counsel became aware of the lien because the judgment was renewed on May 15, 2018. The renewed judgment amount accrued to $15,648.23 because of interest after judgment, credit after judgment, and fee for filing renewal application.
On March 19, 2019, after reviewing the motion and good cause appearing, the Court granted the motion to reopen Debtors’ case for a period of sixty days. Dkt. No.
The motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) was subsequently filed by Debtors on March 29, 2019 (hereinafter "First Motion to Avoid Lien"). Dkt. No. 28.
However, the motion was denied on April 26, 2019. Dkt. No. 30. The Court reasoned that Debtors provided insufficient evidence of the exempt status and the fair market value of the Property: the Debtors erroneously used the same exempt value as the secured claim value, and did not provide evidence of the fair market value of the Property. Id. On May 30, 2019, Debtors filed a second motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522 (f) (hereinafter the "Second Motion to Avoid Lien"). Dkt. No. 32. Even though the sixty-day period had expired on May 18, 2019, the Court still heard the motion and placed it on its calendar for hearing on July 31, 2019. Dkt. No. 35.
On July 31, 2019, the Court heard the matter. Yet, again, the Court denied the motion without prejudice because of a list of errors:
On page 2, paragraph 5 of the motion, Debtors placed the wrong exempted amount.
on page 2, paragraph 9 of the motion, Debtors allege that the fair market value of the property was $60,500; however, they provided an appraisal claiming the fair market value of the property was $49,000;
on page 2, paragraph 10 of the motion, Debtor failed to include Chase’s lien on the property, alleged to be in the amount of $42,303.71; etc.
On September 5, 2019, Debtors filed a third motion to avoid FMC’s abstract
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judgment lien under 11 U.S.C. §522(f) (hereinafter "Third Motion to Avoid Lien"). Dkt. No. 40. Yet again, on October 9, 2019, because of a list of errors and insufficient evidence that were listed above but never rectified, the Court denied the motion and closed the case.
On November 5, 2019, Debtors filed a second motion to reopen the case to avoid a lien (hereinafter "Second Motion to Reopen"). After reviewing the case and good cause appearing, the Court granted the Second Motion to Reopen for a period of sixty days. Dkt. No. 54. The Debtors subsequently filed a fourth motion to avoid FMC’s abstract judgment lien under 11 U.S.C. §522(f) (hereinafter "Fourth Motion to Avoid Lien"). Dkt. No. 56.
DISCUSSION
I. Exemptions
11 U.S.C §522 is the principal section governing exemptions. 11 U.S.C § 522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residence from choosing the exemption stated in that subsection. 11 U.S.C. §522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C §522(d) can limit their residence to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series, at the time the earliest lien in the series of overlapping liens was created.
In Debtors’ declaration in support of the motion, it states that Chase incurred a secured claim on August of 1990. However, like the other motions to avoid the FMC’s abstract judgment lien, this motion does not have any evidence of Chase’s
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lien. The lack of this evidence significantly prevents the Court to determine if FMC’s lien can actually be voided under 11 U.S.C. §522(f).
Without evidence of Chase’s lien or its value, it quite difficult to determine the homestead exemption amount. The Debtors are allowed an exemption of their aggregate interest in the real property that the debtors use as a residence up to the value of the exemption. When Debtors’ homestead is subjected to a valid mortgage, which the Debtors allege the Chase lien is, the exemption is applied to the unencumbered interest of the first mortgage.
Furthermore, California gives its residence one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal. Code of Civ. Proc. § 703.140, including an homestead exemption of $24,060, or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. § 704.730, which provides three different amounts—$75,000, $100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In their Memorandum of Points and Declaration of James A. Alderson in their Fourth Motion to Avoid the Lien, Debtors allege to exempt the Property under Cal.
Code of Civ. Proc. §403(b)(1). Cal. Code of Civ. Proc. §403(b)(1), has nothing to do with homestead exemptions. This provision pertains to reclassification of civil actions and proceedings. However, on page 2, on Paragraph 5, Debtors claim an exemption in the amount of $18,196.29 under Cal. Code of Civ. Proc. §703(b)(1). This pertains to the correct section, exemptions, but it does not enlighten the court to what homestead exemption the Debtors elect.
Nonetheless, under either of exemptions the Debtors can elect, the property would be encumbered if there was evidence of Chase’s lien existing and the value of that lien being what the Debtors allege. Yet again, the Court has no choice but to deny the motion after the Debtors fail to provide evidence that the Court has repeatedly asked for. In other words, without proof of a senior lien, there is sufficient equity in the residence to satisfy both the claimed exemption and the Ford judgment, and thus the lien does not impair the exemption.
Opposition: None
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Service: Proper
As set forth above, the Court DENIES this motion with prejudice. After repeatedly allowing the Debtors multiple bites at the proverbially apple and stating the type of evidence needed to determine whether the motion should be granted, the Court hereby orders that the case be closed.
APPEARANCES REQUIRED.
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Movant(s):
Maximino Romero Torres Represented By James A Alderson
Rebecca Anne Torres Represented By James A Alderson James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
2:00 PM
From: 3/31/20 Also #13
EH
Docket 64
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
2:00 PM
Also #16 EH
Docket 188
On January 9, 2018, Jose de Jesus Hernandez ("Debtor") filed a Chapter 11 voluntary petition. On December 10, 2018, Debtor filed its first Chapter 11 plan and disclosure statement. On July 9, 2019 Debtor filed an amended disclosure statement and amended Chapter 11 plan. On November 6, 2019, the Court entered an order denying approval of Debtor’s amended disclosure statement. On November 15, 2019, Debtor filed the second amended disclosure statement and second amended Chapter 11 plan (the "Plan"). On February 7, 2020, the Court entered an order approving Debtor’s second amended disclosure statement.
The Court set a hearing on confirmation of the Plan for March 31, 2020. On February 6, 2020, Debtor filed a notice of confirmation hearing. On February 20, 2020, Debtor filed a certification of service indicating service of the plan package, including: (a) ballots; (b) the Plan; (c) the second amended disclosure statement; (d) order approving the second amended disclosure statement; and (e) notice of confirmation hearing. On March 2, 2020, the Court approved a stipulation between Debtor and the California Department of Tax and Fee Administration ("CDTFA") regarding plan treatment. This
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stipulation incorporated a previous stipulation approved on May 17, 2019, which provided, inter alia, that CDTFA "stipulates to cast a vote in favor confirmation of Debtor’s Plan of Reorganization once the disclosure statement is approved and solicitation of the Plan is authorized by the court."
On March 17, 2020, Debtor filed a memorandum of points and authorities and a summary of ballots. The Court notes that these documents were filed four days after the Court’s directed deadline of March 13, 2020.
Ballots
Pursuant to declaration filed February 20, 2020, Debtor timely transmitted its disclosure statement, Plan, ballots, and notice of confirmation hearing. The only ballot received by Debtor was from On Deck Capital, a Class 1 creditor which voted to accept Debtor’s Plan.
Classes
Unclassified Claims:
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and the Internal Revenue Service ($92,925.42) all filed proofs of claims. The Plan states that priority tax claims are to be in full with 5% interest in equal monthly payments ending in January 2023. Debtor has stipulated with CDTFA, however, to pay its claim at 7% interest.
$139,434.96, to be paid in equal monthly payments over sixty months ending in June 2023. Class 1 has voted to accept the Plan.
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pursuant to contractual terms.
Plan Confirmation
"The bankruptcy court must confirm a Chapter 11 debtor’s plan of reorganization if the debtor provides by a preponderance of the evidence either (1) that the Plan satisfies all thirteen requirements of 11 U.S.C. § 1129(a), or (2) if the only condition not satisfied is the eighth requirement, 11 U.S.C. § 1129(a)(8), the Plan satisfies the ‘cramdown’ alternative to this condition found in 11 U.S.C. § 1129(b), which requires that the Plan ‘does not discriminate unfairly’ against and ‘is fair and equitable’ towards each impaired class that has not accepted the plan." In re Ambanc La Mesa Ltd. P’ship, 115 F.3d 650, 653 (9th Cir. 1997).
A. 11 U.S.C. § 1129(a) requirements
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1129(a)(1): "The plan complies with the applicable provisions of this title." The legislative history indicates that this requirement primarily refers to the requirements of 11 U.S.C. §§ 1122 and 1123. See In re Multiut Corp., 449 B.R. 323, 333 (Bankr.
N.D. Ill. 1984). Section 1122 deals with the classification of claims, and requires that claims in a single class be substantially similar. The Court finds that the demarcation of classes is proper. Section 1123 deals with the contents of a plan, and identifies certain mandatory and permissive provisions. For the reasons set forth in the confirmation brief, it appears that Debtor is in compliance with § 1123.
1129(a)(2): "The proponent of the plan complies with the applicable provisions of this title." The legislative history indicates that this requirement primarily refers to the disclosure requirements in § 1125. See In re Capitol Lakes, Inc., 2016 WL 3598536 at
*2 (Bankr. W.D. Wis. 2016). Here, the Court has approved Debtor’s disclosure statement, and Debtor has provided a service declaration indicating that the required documents were served on creditors, and, therefore, it appears that this requirement has been satisfied.
1129(a)(3): FED. R. BANKR. P. Rule 3020(b)(2) provides that: "If no objection is timely filed, the court may determine that the plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on such issues." Here, no objection has been timely filed, and, as such, the Court deems the Plan to have been filed in good faith and not by any means forbidden by law. Therefore, this requirement is satisfied.
1129(a)(4): Section II.B.1 of the Plan states that Court approval of administrative fees is required prior to payment. Therefore, it appears that this requirement has been satisfied.
1129(a)(5): Because Debtor is an individual, this provision is inapplicable.
1129(a)(6): Because Debtor is an individual, this provision is inapplicable.
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1129(a)(7): This provision requires that either: (a) each class accepts the plan; or (b) will receive at least as much as it would receive in a hypothetical liquidation under Chapter 7. Debtor confirmation brief only vaguely addresses this provision.
Liquidation analysis is provided as the final page (final attachment) to Debtor’s Plan.
1129(a)(8): All classes are not deemed to have accepted the Plan. Confirmation brief addresses cramdown of classes 2, 3, 6, 7, and 9.
1129(a)(9): This requirements appears to have been satisfied because administrative fees will be paid on the later of: (a) the effective date of the plan; (b) the date upon which an order is entered allowing the fees; or (c) a later date agreed to by the claimant. Priority tax claims are to be paid with 5% (or 7%) interest in full within sixty-months of the petition date.
1129(a)(10): The ballot summary and ballots submitted by Debtor appear to indicate that Class 1 has accepted the Plan, and, therefore, it appears that this requirement is satisfied.
1129(a)(11): This provision requires Debtor to demonstrate that "[c]onfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization."
Cash on hand required on effective date: $50k (administrative fees) + $1,729.31 (Class 3) + $77.54 (Class 6) + $665.50 (Class 7) + $50k (priority unsecured) + $190 (general unsecured) = $102,662.35. Confirmation brief says Debtor has about $100k, however, there is no evidence from Debtor to support this figure.
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Monthly plan payments required: $2,323.92 (Class 1) + $297.18 (Class 2) + $3,244.67 (Class 8) + $1,192.37 (priority unsecured) = $7,058.14.
General unsecured estimated at $789.90
Priority tax claims (other than Class 8) estimated at $4,519.48
Total monthly plan payment estimated at $12,367.52
1129(a)(12): Section II.B.I. of the Plan indicates that all bankruptcy fees have been paid or will be paid by the effective date of the plan.
1129(a)(13): This provision is inapplicable to the instant case.
1129(a)(14): This provision is inapplicable to the instant case.
1129(a)(15): No unsecured creditor objected to the Plan, and, therefore, this provision is inapplicable in the instant case.
1129(a)(16): This provision is inapplicable to the instant case.
Tentative Ruling:
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The Court is inclined to CONTINUE the hearing for detailed evidence from Debtor as to ability to make effective date and ongoing plan payments. In addition, as to cramdown on Class 2, Debtor will need to supplement its analysis as it appears paying arrears over five years without interest does not satisfy the fair and equitable requirement of 11 U.S.C. § 1129(b)(2).
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20, 2/4/20, 3/31/20
Also #15 EH
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
Also #18 EH
Docket 550
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner
2:00 PM
Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 8/28/18, 9/25/18, 10/30/18, 11/13/18, 12/18/18, 2/26/19, 3/27/19, 5/1/19, 7/30/19, 9/17/19, 11/19/19, 2/4/20
Also #17 EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
From: 9/4/19, 10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20, 3/24/20
Also #20 & #21 EH
Docket 9
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
Also #19 & #21 EH
Docket 107
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From:10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20, 3/24/20
Also #19 & #20 EH
Docket 4
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
11:00 AM
Docket 54
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: $ 37.68 Trustee Expenses: $ 48.54
Attorney Fees: $ 2,887.62 Attorney Costs: $ 139.12
Court Costs: $350
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):
M. A. Tabor Represented By
Judith Runyon
Trustee(s):
Todd A. Frealy (TR) Represented By
11:00 AM
Anthony A Friedman Lindsey L Smith
2:00 PM
Adv#: 6:18-01237 G Hurtado Construction, Inc. v. Catano et al
From: 2/5/19, 6/5/19, 6/26/19, 1/15/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
Defendant(s):
Juan Catano Pro Se
Faustino Magana Pro Se
Donahoo & Associates, PC Pro Se
Plaintiff(s):
G Hurtado Construction, Inc. Represented By Michael Jones
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, 11/14/18, 1/30/19, 2/27/19, 6/12/19, 7/10/19, 1/15/20
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
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Louis J Esbin
Rafat 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#: 6:13-01171 Schrader v. Sangha
EH
Docket 359
On April 18, 2013, Narinder Sangha ("Defendant") filed a Chapter 7 voluntary petition. On April 25, 2013, Charles Schrader ("Plaintiff") filed an adversary complaint against Defendant for non-dischargeability pursuant to 11 U.S.C. § 523(a) (6).
On August 12, 2013, the Court entered its first scheduling order, directing the parties to complete mediation by October 16, 2013; that deadline was ultimately continued to October 29, 2013. On December 4, 2013, the Court entered a second scheduling order, directing the parties to complete mediation by January 31, 2014.
On August 7, 2014, the Court entered an order granting Plaintiff’s motion for summary judgment, and a corresponding judgment. This judgment was appealed, ultimately being vacated and remanded by the Ninth Circuit on March 10, 2017. On April 19, 2017, Plaintiff filed a renewed motion for summary judgment which, after several continuances, was ultimately granted in part and denied in part on March 15,
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2019 (the "Opinion").
Since the Court issued the Opinion granting partial summary judgment to Plaintiff, the parties have engaged in several discovery disputes, with Defendant switching counsel on multiple occasions during the course of the case. On May 3, 2019, Defendant filed a motion to reopen discovery. As noted by the Court on the hearing of May 22, 2019, the Court had never actually set a discovery deadline, and, therefore, the Court denied the motion. Based upon the discussion with parties at the hearings of May 22, 2019, the Court entered a scheduling order on May 24, 2019. The scheduling order set a discovery deadline of July 31, 2019, and a deadline to file dispositive motions of August 23, 2019.
On July 10, 2019, the Court heard Defendant’s (then pro se) motion to serve additional discovery requests. That motion was denied for the reasons stated on the record at the hearing of July 10, 2019.
On July 30, 2019, Defendant filed a motion to extend discovery cutoff and related dates. On September 3, 2019, the Court granted Defendant’s motion to extend the discovery cutoff to the limited extent of clarifying that discovery need only be propounded, not completed, by July 31, 2019. On October 16, 2019, Defendant filed a motion for sanctions against Plaintiff, which the Court ultimately denied.
On October 28, 2019, Defendant filed a motion to reconsider the Opinion, arguing that: (1) the state court judgment was void for failure to properly plead damages; (2) issue preclusion was inappropriate because certain affirmative defenses were neither actually litigated nor necessarily decided; and (3) public policy is not served by application of issue preclusion. On November 12, 2019, Plaintiff filed his opposition. On December 16, 2019, the Court entered an order denying Defendant’s motion for reconsideration.
On March 11, 2020, Plaintiff filed a motion, which was titled "Motion in Limine on Defendant’s First Affirmative Defense of Privilege." On March 18, 2020, Defendant
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filed an opposition. On April 1, 2020, the Court orally denied the motion.
On March 31, 2020, Defendant filed a motion for leave to amend his answer to include affirmative defenses of truth and privilege. On April 6, 2020, Plaintiff filed his opposition. On April 15, 2020, Defendant filed a reply.
FED. R. CIV. P. Rule 15(a)(2), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7015, provides that "a party may amend its pleading only with opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires."
The Ninth Circuit has noted that there is a strong policy of allowing amendments, and has noted four factors for courts to consider: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; and (4) the futility of amendment. See, e.g., Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994).
While the parties brief, in detail, the application of the foregoing factors to Defendant’s request, the Court is not convinced that the parties have properly framed the issue. Defendant, in his reply brief, presents the following argument:
[The] premise that a defense created by state law must be directed to a specific element of a claim of nondischargeability is unfounded and inaccurately frames the issue. As noted above, there are more determinations to be made at trial than deciding the mere question of willfulness under Section 523(a)(6). This is due to the complete lack of findings in the Default Judgment, which has limited issue preclusive effect.
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[Dkt. No. 364, pgs. 7-8].
The Court does not agree with the logic presented in Defendant’s argument. Non- dischargeability actions can be filed whether there is or is not an underlying state court judgment evidencing the debt. When there is not an underlying state court judgment, the Court requires the non-dischargeability plaintiff to also adequately allege the existence of a debt, which typically requires that plaintiff to plead the elements of its claim with reference to state law. When the non-dischargeability plaintiff already has secured a state court judgment, however, the elements of the state court claim are no longer relevant, the debt having been proven, and the only remaining question is whether that judgment satisfies the applicable elements under 11 U.S.C. § 523(a).
Here, the Court already determined that the findings made in state court were sufficient for the Court to apply issue preclusion to the § 523(a)(6) maliciousness prong. The Court also determined, however, that the state court judgment did not provide a basis for the Court to provide issue preclusion to the § 523(a)(6) willfulness prong. After the Court entered the Opinion, the only remaining issue in this adversary is the issue of willfulness. As a result, Defendant’s argument that its affirmative defenses do not need to apply to specific elements of § 523(a)(6) simply does not make sense. See, e.g., In re Gergely, 110 F.3d 1448, 1454 (9th Cir. 1997) (state law affirmative defense is irrelevant after debt has been established). Because Plaintiff would not be precluded from establishing the element of willfulness even if Defendant successfully established its affirmative defenses of truth and privilege, the proffered "affirmative defenses" are not actually affirmative defenses to this action. Instead, what Defendant seeks to do is relitigate the malicious prong of 523(a)(6), and that time has passed.
Tentative Ruling:
The proposed amendment being futile, the Court is inclined to DENY the motion.
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APPEARANCES REQUIRED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Movant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
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: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20
Also #4 EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
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
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20
EH
Docket 1
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20
EH
Docket 24
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
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 53
Service: Proper Opposition: Late
Parties to apprise Court of status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Lewis Halfbreed Morris Represented By David Lozano
Joint Debtor(s):
Debra Denise Morris Represented By David Lozano
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth Jacky Wang
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MIDFIRST BANK
From: 3/31/20 EH
Docket 44
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT requests under ¶¶ 2, 3, and 14.
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jorge Luis Luviano Represented By James G. Beirne
Joint Debtor(s):
Giovanna Toledo De Luviano Represented By James G. Beirne
11:00 AM
Movant(s):
MidFirst Bank Represented By Gilbert R Yabes Joseph C Delmotte Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 1/7/20, 2/4/20, 3/3/20, 3/24/20, 4/14/20 EH
Docket 71
Service is Proper Opposition: Yes
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Wilington Savings Fund Society, Represented By
Dane W Exnowski Erin M McCartney Mark S Krause
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA, N.A.
EH
Docket 104
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on April 27, 2018, less than one year before the instant case was filed. Debtor not having calendared a motion to continue the automatic stay, the automatic stay expired on April 3, 2019. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Heather Ann Pessoa Bond Represented By Matthew D. Resnik
Movant(s):
HSBC BANK USA, N.A. Represented By Eric P Enciso Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: XW GROUP INC
EH
Docket 38
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT request under ¶ 2.
-DENY request for relief from § 1301(a) co-debtor stay because no co-debtor was served with this motion.
-DENY requests for relief under ¶¶ 7, 8, 9 and 11. All of these requests for in rem relief are traceable to Movant’s argument that the case was filed in bad faith. This Court, however, has already adjudicated that the case was filed in good faith on multiple occasions: (1) when the Court imposed the automatic stay on December 17, 2019; and (2) when the Chapter 13 plan was confirmed on March 30, 2020. See, e.g., Arizona v. California, 460 U.S. 605 (1983) (outlining law of the case doctrine). In addition, the request under § 362(d)(4) is inapplicable because Movant is no longer a secured creditor. The Court notes that if Debtor were to file another case on or before August 5, 2019, Debtor would need to seek to impose the automatic stay in that case.
- Regarding Movant’s request to annul the automatic stay, the Bankruptcy Appellate Panel, 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
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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."). More recently, the Bankruptcy Appellate Panel stated the following regarding the standard for annulment of the automatic stay:
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 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.
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In re Estavan Capital LLC, 2015 WL 7758494 at *5 (B.A.P. 9th Cir. 2015) (citations and quotations omitted); see also In re Nat’l Envtl. Waste Corp., 129 F.3d 1052, 1055 (9th Cir. 1997) ("Many courts have focused on two factors in determining whether cause exists to grant relief from the stay: (1) whether the creditor was aware of the bankruptcy petition; and (2) whether the debtor engaged in unreasonable or inequitable conduct, or prejudice would result to the creditor.").
Fjeldsted cautioned that the enumerated factors are not a scorecard, but the standards articulated above weigh in favor of annulling the stay in this case. The holding of a foreclosure sale, the recording of the trustee’s deed upon sale, the filing of the notice to quit, and the filing of the unlawful detainer action all occurred before the automatic stay was imposed in this case. As a result, it not clear what actions were actually taken in violation of the automatic stay, other than the state court’s entry of a UD judgment. Additionally, the Court notes that Debtor’s Schedule D filed on the petition date (before the foreclosure sale occurred) did not list any creditor holding a secured claim against the subject real property. As a result, it appears that Debtor deliberately declined to serve either the foreclosure seller or the foreclosure purchaser with notice of the bankruptcy. Furthermore, the Court notes that Debtor has had seven bankruptcy cases previously dismissed, including two in 2018 and two in 2019; all four of the recent cases were dismissed for failure to file information. Finally, Movant has submitted a declaration indicating that, once it learned of the bankruptcy filing, it took no further action to violate the stay, and instead filed the instant motion. The two primary factors articulated by the Ninth Circuit in In re Nat’l Evtl. Waste Corp. both heavily weighing in favor of annulling the automatic stay, and Debtor not having filed any 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 request to annul, annulling the automatic stay retroactive to December 17, 2019.
APPEARANCES REQUIRED.
Debtor(s):
Jay Tony Klester Represented By Yelena Gurevich
11:00 AM
Movant(s):
XW Group Inc Represented By John E Bouzane
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 11
Service: Proper Opposition: None
11 U.S.C. § 362(c)(4)(i) provides that
if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case
Here, Debtors had two previous Chapter 13 cases dismissed in the year preceding the instant bankruptcy case. Debtors not having filed a motion to impose the automatic stay, the automatic stay did not arise in this case. Therefore, the automatic stay never having arisen in this case, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Caleb Gervin Represented By
Christopher Hewitt
Joint Debtor(s):
Ashley Gervin Represented By Christopher Hewitt
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
From: 4/14/20 EH
Docket 15
Service: Proper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I)-(II) because Debtor had (a) three bankruptcy cases dismissed in the previous year; and (b) had a case dismissed for failure to file requirement documents. Section 362(c)(4)
(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely implies that Debtor has a higher paying job now, without any detail describing the change in Debtor’s financial circumstances. As a result, the Court is inclined to CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
Debtor(s):
Robert Joseph Slapp III Represented By
11:00 AM
Movant(s):
Nicholas M Wajda
Robert Joseph Slapp III Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 10
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Crystal Ruelas Represented By Daniel F Jimenez
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Mandy D Youngblood Sheryl K Ith
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC
EH
Docket 8
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Joseph Daniel Melillo Represented By
Arnold H. Wuhrman
Joint Debtor(s):
Kimberly Maureen Melillo Represented By
Arnold H. Wuhrman
11:00 AM
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Mandy D Youngblood Sheryl K Ith
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: MERCEDES-BENZ FINANCIAL SERVICES USA LLC
EH
Docket 9
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Jalal A. Ali Represented By
Christopher J Langley
Movant(s):
Mercedes-Benz Financial Services Represented By
John H Kim
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
Docket 128
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
EH
Docket 73
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
MOVANT: MANSOUR HOSSEIN BARGHI
From: 3/31/20 Also #15
EH
Docket 23
Service: Adequate Opposition: Yes
On February 21, 2020, Dimlux LLC ("Debtor") filed a skeletal Chapter 11 voluntary petition. On March 5, 2020, Mansour Barghi ("Movant") filed a motion for relief from the automatic stay along with an application shortening time requesting that the Court set a hearing on the matter by March 10, 2020. The Court denied the application shortening time by order entered March 5, while pointing out that the allegation that Debtor was a repeat filer appeared to be incorrect. On March 9, 2020, Movant filed an amended motion that set the matter for hearing on March 31, 2020. Movant requests relief from stay to continue with state court litigation pending in Los Angeles.
Movant’s state court complaint contains causes of action for: (1) quiet title; (2) interference with prospective economic advantage; (3) intentional infliction of emotional distress; (4) fraud; and (5) injunction. The state court complaint contains defendants other than Debtor, the primary defendant being Movant’s son. Debtor is only a defendant as to the first, fourth, and fifth causes of action.
2:00 PM
At the hearing on March 31, 2020, the Court noted that: (a) the motion was not properly served on Debtor; (b) the motion contained insufficient evidence to support a bad faith finding; and (c) the motion contained insufficient evidence to warrant annulment of the automatic stay. The Court ultimately continued the hearing for four weeks for Movant to file a supplement addressing these points.
On April 7, 2020, Movant filed a supplement that, while providing supplemental briefing relating to standard relief under 11 U.S.C. § 362(d)(1), did not actually address any of the three issues noted in the preceding paragraph. On April 14, 2020, Debtor filed its response, arguing that service remained improper and generally opposing the motion. The Court notes that the proof of service for the opposition is not signed at all, so service of Debtor’s opposition is also improper. On April 21, 2020, Movant filed a reply.
The Court notes that while none of the pleadings filed in relation to this matter have been properly served, the parties clearly have knowledge of the respective pleadings and have been afforded an adequate time to respond. As a result, the Court is inclined to waive the requirement of Local Rule 4001-1(c)(1)(C)(i) that the Debtor itself (and not just Debtor’s attorney) be properly served with the motion.
Turning to the merits of the motion, the Court notes that while Movant argues that 28
U.S.C. § 1334(c)(2) applies here, and Debtor does not raise an argument otherwise, a finding that mandatory abstention is appropriate does not automatically result in relief from stay. See, e.g., In re Conejo Enters., Inc., 96 F.3d 346, 352 (9th Cir. 1996) ("First, a finding that mandatory abstention applies to the underlying state action does not preclude denial of relief from § 362’s automatic stay.").
When considering a motion for relief from the automatic stay to pursue a non- bankruptcy action, the Court considers the Curtis factors:
(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 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
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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 good or proceeds in question; (7) whether the litigation in another forum would prejudice the interests of other creditors, the creditor’s committee and other interested parties; (8) whether the judgment claim arising from the foreign action is subject to equitable subordination; (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 and the "balance of hurt."
In re Roger, 539 B.R. 837, 844-45 (C.D. Cal. 2015). In Roger, the Court further stated:
The Ninth Circuit has recognized that the Curtis factors are appropriate, nonexclusive, factors to consider in deciding whether to grant relief from the automatic stay to allow pending litigation to continue in another forum. While the Curtis factors are widely used to determine the existence of cause, not all of the factors are relevant in every case, nor is a court required to give each factor equal weight.
According to the court in Curtis, the most important factor in determining whether to grant relief from the automatic stay to permit litigation against the debtor in another forum is the effect of such litigation on the administration of the estate. Even slight interference with the administration may be enough to preclude relief in the absence of a commensurate benefit. That said, some cases involving the automatic stay provision do not mention the Curtis factors at all.
Nevertheless, although the term "cause" is not defined in the Code, courts in the Ninth Circuit have granted relief from stay under § 362(d)
(1) when necessary to permit pending litigation to be concluded in another forum if the non-bankruptcy suit involves multiple parties or is
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ready for trial.
Id. at 845 (quotations and citations omitted). As is typically the case, "[t]he record does not indicate that Curtis factors 3, 4, 5, 6, 8, or 9 are at issue in this case, nor do the parties argue to the contrary." Id.
Turning to the remaining of the factors, the Court concludes that the majority of the factors weigh in favor of granting Movant relief from the automatic stay. Specifically, while the second and seventh factors may weigh against granting relief from stay, because a continuation of the state court proceedings may have an impact on the administration of the bankruptcy estate and affect other parties in interest, the remainder of the factors weigh in favor of relief from stay being granted. Regarding the first factor, it would appear that the state court proceedings would result in a complete resolution of the issues. Regarding the tenth and eleventh factors, the state court, the state court complaint was filed more than two years ago and, disregarding the impact of COVID-19 on state court civil litigation proceedings, appears to be close to trial. As a result, judicial economy would be best upheld by having the proceedings finish in state court. Finally, regarding the twelfth factor, and noting that Debtor is in material default of the Chapter 11 compliance requirements, as outlined in the UST’s report filed on April 21, the Court concludes, for the reasons stated above and stated in the pleadings, that the equities favor granting relief from stay.
Based on the foregoing, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and GRANT waiver of the Rule 4001(a)(3) stay.
Regarding Movant’s requests for annulment of the automatic stay and for the order to be binding for 180 days, the Court is inclined to DENY the requests under ¶¶ 3, 6, and 7 for lack of cause shown. As already noted, the supplements filed by Movant do not contain any evidence supporting those requests.
APPEARANCES REQUIRED.
Debtor(s):
Dimlux LLC Represented By
Donald Beury
2:00 PM
Movant(s):
Donald Beury
Mansour Hossein Barghi Represented By Fari B Nejadpour
2:00 PM
From: 3/24/20, 3/31/20 Also #14
EH
Docket 4
- NONE LISTED -
Debtor(s):
Dimlux LLC Represented By
Donald Beury Donald Beury
11:00 AM
Docket 252
4/29/20
Opposition: None Service: Proper
The application 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 Counsel, the Court is inclined to APPROVE the following administrative expenses:
Trustee’s Fees: | $2,750.00 |
Trustee’s Expenses: | $223.90 |
Attorney’s Fees: | $11,889.00 |
Attorney’s Expenses: | $249.77 |
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):
Josue Luna Represented By
Jenny L Doling
Joint Debtor(s):
11:00 AM
Fabiola Luna Represented By
Jenny L Doling
Trustee(s):
John P Pringle (TR) Represented By Todd A Frealy Carmela Pagay
11:00 AM
Docket 111
4/29/20
Opposition: None Service: Proper
The application 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 Counsel and Accountant, the Court is inclined to APPROVE the following administrative expenses:
Trustee’s Fees: | $16,266.31 |
Trustee’s Expenses: | $490.49 |
Attorney’s Fees: | $71,765.00 |
Attorney’s Expenses: | $3,342.28 |
Accountant’s Fees: | $1,816.00 |
Accountant’s Expenses: | $270.50 |
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):
Beatrice A Diaz Pro Se
Trustee(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
Anthony A Friedman
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, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20, 4/8/20
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
2:00 PM
Stacy Winn Represented By
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
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20
Also #5 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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20
Also #4 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, 11/27/18, 2/26/19,
4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 3/4/20
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
2:00 PM
Mark S Horoupian 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, 11/27/18, 2/26/19, 4/10/19, 6/12/19,
8/28/19, 11/6/19, 2/12/20, 2/19/20
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#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20
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
2:00 PM
Jason Balitzer 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, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20
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
2:00 PM
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
From: 7/10/18, 2/27/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20
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 Mark S Horoupian
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#: 6:18-01138 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)
(AS TO CONESTOGA)
From: 2/12/20 Also #12 & #13 EH
Docket 1
- NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
2:00 PM
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
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
2:00 PM
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
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)
(AS TO REMAINING DEFENDANTS)
(Jeff Converse - dismissed 12/2/19)
(Provident Trust Group LLC - dismissed 12/17/19) (De Loeon & Washburn, P.C. - dismissed 1/8/20) (Thomas Washburn - dismissed 1/8/20)
(Hector De Leon - dismissed 1/8/20)
From: 8/29/18, 11/28/18, 1/9/19, 4/10/19, 11/6/19, 2/12/20, 2/19/20
Also #11 & #13 EH
Docket 1
- NONE LISTED -
2:00 PM
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
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
Rafael R Garcia-Salgado
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
Also #11 & #12 EH
Docket 111
- NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
Michael Woods Pro Se
Michael McDermott Pro Se
Joint Debtor(s):
Ellen O. Tackett Represented By Stefan R Pancer
2:00 PM
Plaintiff(s):
Steven M Speier Represented By Thomas J Eastmond Robert P Goe
Rafael R Garcia-Salgado
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:19-01165 Cisneros v. David
A. Cisneros against Anthony J. Davis. (Charge To Estate- $350.00). (Attachments: # 1 Adversary Coversheet) Nature of Suit: (31 (Approval of sale of property of estate and of a co-owner - 363(h))),(11 (Recovery of
money/property - 542 turnover of property)) (Pagay, Carmela) Modified on 11/22/2019. filed by Plaintiff A. Cisneros). (Attachments: # 1 Adversary Coversheet) (Pagay, Carmela)
From: 1/15/20, 3/4/20 EH
Docket 6
- NONE LISTED -
Debtor(s):
Lauren David Represented By Salvatore Bommarito
Defendant(s):
Anthony J David Pro Se
Plaintiff(s):
A. Cisneros Represented By
Carmela Pagay
Trustee(s):
Arturo Cisneros (TR) Represented By
2:00 PM
Todd A Frealy
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 1/8/20, 4/8/20 Also #16
EH
Docket 11
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed a Chapter 7 voluntary petition. On August 22, 2019, Robert S. Whitmore (the Chapter 7 "Trustee") brought an adversary proceeding against Jose Gularte ("Mr. Gularte") and Marjorie Elizabeth Gularte-Torres ("Mrs. Gularte-Torres") (collective, "Defendants") for the benefit of the estate.
The adversary proceeding arose from a real estate transaction between the Debtor and the Defendants. Debtor and her spouse, Edgar S. Torres, bought real estate at 1527 Fairwood Way, Upland, CA 91786 (the "Property) on November 2, 1990.
Less than two years before the Petition Date, on December 29, 2017, Debtor and her spouse transferred the Property to Mr. Gularte. Mr. Gularte then proceeded to transfer the deed to himself and his wife, Mrs. Gularte-Torres.
The Trustee alleges that the transfer among the parties is fraudulent and seeks to avoid the transfer and recover the Property for the estate.
The Trustee alleges that Defendants are insiders of the Debtor: Mr. Gularte is the debtor’s son-in-law, and Mrs. Gularte-Torres is the debtor’s daughter. Because
2:00 PM
Defendants and Debtor still reside at the same Property after the transfers occurred, Trustee alleges that Debtor still retains the benefit of ownership. The Trustee alleges that the consideration given was less than a reasonably equivalent value: a seller credit and a gift were given. The Trustee avers that the value of the consideration given was less than the value of the Debtor’s equity of $154,424.76.
The Trustee served the summons and complaint on Defendants by first-class mail to Defendants’ home on August 23, 2019. After forty-eight days without Defendants pleading or defending against the relief sought by the Trustee, the Trustee requested an entry for default judgment. On October 11, 2019, the Clerk of the Court entered a default judgment against defendants.
The Trustee now files this motion for an entry of default judgment by the Court to avoid and recovery the Property.
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C. §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may
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be commenced in the district court in which such case is pending."
Debtor’s lead bankruptcy case (19-bk-14650-MH) is currently pending in this Court.
Personal Jurisdiction
Jose Gularte and Marjorie Elizabeth Gularte-Torres are residents of California.
Thus, personal jurisdiction is proper.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Trustee has fulfilled such requirements in his request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person;
the defendants are not currently on active duty in the armed forces, etc. The Trustee also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b). Thus, the Clerk entered a valid entry of default.
2:00 PM
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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. The Trustee has not asked for the value of the Debtor’s equity in the Property, $154,424.76. Instead, the Trustee has asked the Court to rule that the transfers were fraudulent, the transfers should be avoided, and that the Property should be returned to the Debtor’s bankruptcy estate. Thus, by requesting an injunctive relief, the Trustee has correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due
2:00 PM
to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitle v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When it comes to the first factor, the Trustee, being the arbiter of the estate would only be prejudice in his responsibility to provide the best interest of parties in interest. That is, by not recovering the property, the creditors would receive potential less than what they could have.
Merits of Plaintiff’s Claim
The general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). "A default establishes the well-pleaded allegations of a complaint unless they are incapable of proof or are contrary to facts judicially noticed or to uncontroverted material in the file." In re McGee, 359 B.R. 764 (B.A.P 9th Cir.) (emphasis added by italicizing) (citing In re Consolidated Pretrial Proceedings in Air West Sec. Litigation, 436 F. Supp. 1281, 1286 (N.D. Cal. 1977)). A well-pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
The Trustee alleges, pursuant to 11U.S.C. § 548(a)(1)(A), that Debtor within two years of filing her petition transferred the Property with actual intent to hinder, delay, or defraud. The word ‘intent’ is used to denote that the actor desire to cause consequences of his act. [Vol 5] Collier on Bankruptcy ¶ [548.04] (Richard Levin & Henry J. Sommer eds., 16th ed.). "If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id.
Because it is difficult to prove actual intent, courts infer fraudulent intent from the circumstances surrounding the transfer; including but not limited to (1) insolvency or other unmanageable indebtedness on the part of the debtor, (2) special relationship between the debtor and transferee; and after the transfer, (3) retention by the debtor of the property. In re Acequia, Inc. 34 F.3d 800 (9th Cir. Ct. App. 1994). These circumstances are universally recognized as the "badges of fraud." Id.
2:00 PM
The Trustee has provided evidence that the value of the Property,
$575,000.000, which was agreed upon by Mr. Gularte and Debtor and her husband, was not given for consideration. (Dkt. No. 11, Ex. 5). In fact, something substantial less was given as consideration because Mr. Gularte received a "gift of equity" in the amount of $150,900.00. This special relationship—Defendants are the daughter and son-in-law of Debtor— precipitated such a gift alleged the Trustee. Furthermore, based on Debtor’s commencement documents, Debtor still lives at the Property, showing that Debtor still retains the benefit of the Property. (Dkt. No. 11, Ex. 7).
Taken as true and neither incapable of proof nor contrary to facts observed by the Court, the Trustee’s allegations are sufficient to prove the claim of an actual fraudulent transfer under 11 U.S.C § 548(a)(1)(A).
Moreover, taking the allegations of the compliant as true as to the second and third claims for relief, the Trustee has sufficiently alleged the elements of a claim for constructively fraudulent transfer against Defendants.
This leaves only one claim of relief left. Whether the Court grants recovery of the Property pursuant to 11 U.S.C. § 550(a). The Court has ruled that Trustee’s allegations are sufficient to prove that the transfer of the Property was fraudulent. Thus, making the transaction avoidable.
Based on the deeds transferring interest in the Property, Mr. Gularte is an immediate transferee and Mrs. Gularte-Torres is a mediate transferee.
Irrespective of how they are defined, 11 U.S.C. § 550(a)(1) and (a)(2) permit the Trustee to recover the property from the Defendants. Seeing no reason to do otherwise, the Court grants the Trustee the Property pursuant to 11 U.S.C. § 550(a).
Possibility of Disputes of Material Facts
The Trustee provided evidence from the Debtor’s commencement document stating the Debtor still resides at the Property. The Trustee provided evidence of the transfer of interest in the property from Debtor and her husband to Defendants. Dkt No. 11, Ex. 3, 4, and 5. Trustee provided evidence of the value of the Property and the consideration given. Dkt. No. 11, Ex 5.
Furthermore, Trustee duly served Defendants with process in this matter.
2:00 PM
Thus, the Court finds that the possibility of disputes of material facts is unlikely.
Sum at Stake in the Action
Even though the Trustee is looking for injunctive relief, the value of said property is significant to the estate. The last consideration given for the Property valued it at $575,000.00. Dkt. No.11, Ex 5. The Property would increase the bankruptcy estate by twenty-fold, weighing in favor of Defendants.
Excusable Neglect
Here, Defendants failed to plead or otherwise defend against the claim, and the Court does not otherwise see any basis for excusable neglect in the pleadings.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
2:00 PM
Thus, the Court is inclined to GRANT the motion to the extent of awarding Trustee judgment on the first, second, third, and fourth claims of relief.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Movant(s):
Robert S. Whitmore Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 10/16/19, 12/11/19, 1/8/20, 4/8/20 Also #15
EH
Docket 1
- NONE LISTED -
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #18 EH
Docket 51
- 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
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Frank X Ruggier
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, 12/12/18, 1/30/19, 2/27/19, 4/10/19, 9/18/19, 10/9/19,
1/8/20, 4/8/20
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
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20, 4/23/20
EH
Docket 1
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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#: 6:19-01051 Martinez v. Garza et al
Also #3 EH
Docket 55
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
Movant(s):
Margarito Martinez Represented By Christopher J Langley
11:00 AM
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
From: 5/23/19, 8/22/19, 10/17/19, 12/19/19, 2/20/20, 3/19/20, 4/16/20
Also #2 EH
Docket 1
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
11:00 AM
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 4/21/20 EH
Docket 74
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Movant(s):
U.S BANK NATIONAL Represented By Sean C Ferry Theron S Covey Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20
EH
Docket 24
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
EH
Docket 29
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Movant(s):
Dennis Gene Rankin Represented By Todd L Turoci Todd L Turoci Todd L Turoci Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 0
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Fiji Simmons Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Jeff Book Represented By
Eric C Morris
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Juan Manuel Sanchez Tejeda Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Schelena Crawford Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
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
Debtor(s):
Erendira Belen Gonzalez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Odie Valtino Mack Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
James Scott Fulks Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Steven A. Gabriel Represented By Paul Y Lee
Joint Debtor(s):
Rachel I. Gabriel Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Eduardo Zamora Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Ana Cecilia Gonzalez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jackie M Zapata Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Lyndon Ray Quisenberry Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Martha E Morales Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Bogar Hernandez Represented By Todd L Turoci
Joint Debtor(s):
Elvira Landin Hernandez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 24
Debtor(s):
Paul Salgado Represented By
Jenny L Doling
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling
Movant(s):
Paul Salgado Represented By
Jenny L Doling
Paula Salgado Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #24 EH
Docket 0
Debtor(s):
Paul Salgado Represented By
Jenny L Doling
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Harold Johnson Represented By Marcus G Tiggs Jeffrey N Wishman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Hesham Hamad Represented By Gary Polston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Raymond Daniel Yaisrael Represented By Michael E Clark
Joint Debtor(s):
Koytoya Deona Arnold Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jerry Arnold La Cues Pro Se
Joint Debtor(s):
Pamela Ann La Cues Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Lakendra Johnson Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Keri Kristina Johnson Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Daniel Salvador Flores Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Jocelyn Davina Flores Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
German Bastidas-Ibarra Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jose Urena Represented By
Kevin Tang
Joint Debtor(s):
Stephanie Urena Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Peter Pastorelli Represented By Benjamin R Heston
Joint Debtor(s):
Martha Maria Pastorelli Represented By Benjamin R Heston
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Lance Thomas Dale Pro Se
Joint Debtor(s):
Maria Elizabet Osuna Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Leschell Marie Murphy-Reed Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Joseph J Vargas Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Edwin Omar Salazar Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Alba Salazar Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 118
Debtor(s):
Valicia LaShawn Fennell Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
Debtor(s):
Mary J Leaverton Represented By
Patricia M Ashcraft - SUSPENDED BK - Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 118
Debtor(s):
Lubna Shiraz Ahmed Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 66
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
11:01 AM
Docket 83
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
11:01 AM
EH
Docket 84
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 78
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
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 83
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
Debtor(s):
Golda Y Williams Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
Debtor(s):
Jamie Marie Saucedo Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
Debtor(s):
Phonmany Phengphavong Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
Debtor(s):
Jose Manuel Urena-Hernandez Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Veronica Galvez Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
Debtor(s):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
Debtor(s):
Orlando Soriano Represented By
James D. Hornbuckle
Joint Debtor(s):
Veronica Vera-Soriano Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
Debtor(s):
Edward A Jandt Represented By Christopher Hewitt
Joint Debtor(s):
Shelley A Jandt Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 25
Debtor(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
Debtor(s):
Heinrich Franz Brinkmann Represented By Stephen H Darrow
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 24
Debtor(s):
Florence Marie Rodriguez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 23
Debtor(s):
Brian Fulk Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
Docket 0
Debtor(s):
Kayla Snyder Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: MIDFIRST BANK
From: 3/31/20, 4/28/20 EH
Docket 44
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT requests under ¶¶ 2, 3, and 14.
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jorge Luis Luviano Represented By James G. Beirne
Joint Debtor(s):
Giovanna Toledo De Luviano Represented By James G. Beirne
11:00 AM
Movant(s):
MidFirst Bank Represented By Gilbert R Yabes Joseph C Delmotte Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 2/4/20 EH
Docket 3
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
10:00 AM
EH
Docket 10
Debtor(s):
Benjamin Ray Boulton Represented By Daniel King
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
EH
Docket 1
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
1:00 PM
EH
Docket 130
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
MOVANT: WILMINGTON TRUST COMPANY
EH
Docket 152
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Wilmington Trust Company (hereinafter "WTC") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtors must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtors have opposed the motion. Debtors state that "they are seeking an adequate protection order to cure the outstanding post-petition delinquency." Dkt. No. 156.
11:00 AM
Debtor claims that "their counsel has reached-out to opposing counsel and was informed that due to the current COVID-19 situation, there have been longer delays than normal regarding approval." Id.
Parties are to update the Court on the status of adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Movant(s):
Wilmington Trust Company Represented By April Harriott
Matthew R. Clark III Sean C Ferry Theron S Covey Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
91708-9353
MOVANT: CALIBER HOME LOANS, INC.
EH
Docket 39
- NONE LISTED -
Debtor(s):
Donald Ray Levier Jr. Represented By
D Justin Harelik
Joint Debtor(s):
Antoinette Marie Levier Represented By
D Justin Harelik
Movant(s):
Caliber Home Loans, Inc. Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: 2ND CHANCE MORTGAGES INC
From: 4/14/20 EH
Docket 9
Tentative Ruling:
On January 18, 2020 ("Petition Date"), Larry M. Carter (hereinafter "Debtor") and Deborah K. Carter (hereinafter "Joint Debtor") (collectively, hereinafter "Debtors") filed for Chapter 7 voluntary petition. In their commencement documents, Debtors listed a resided at 34778 Hickory Lane Wildomar, CA 92595 (hereinafter the "Property") and it being secured by 2nd Chance Mortgages Inc. (hereinafter "2nd CM") and PHH Mortgage Services.
On March 24, 2020, 2nd CM filed a motion for relief form stay pursuant to 11 U.S.C.
§§ 362(d)(1) and 362(d)(2). At the hearing date, the Court continued the motion because 2nd CM failed to serve Chapter 7 Trustee and the holder of other liens affecting the property. Local Bankr. R. 4001-1(c)(1)(C).
On April 15, 2020, 2nd CM filed a notice of hearing on motion for relief from stay. Dkt. No. 13. 2nd CM electronically served the Debtors’ attorney, United States Trustee, the Chapter 7 Trustee, and other parties.
11:00 AM
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. 2nd CM claims that there is a lack of adequate protection of its interest in its property.
Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Request of Notice of Default, Allonge to the Note, and Corporate Assignment of Deed of Trust, 2nd CM has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). 2nd CM has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtors have not opposed the motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 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.
11:00 AM
Debtor(s):
Larry M Carter Represented By Kevin Tang
Joint Debtor(s):
Deborah K Carter Represented By Kevin Tang
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 11
Service: Proper Opposition: Debtor
On January 27, 2020 ("Petition Date"), Raybecka Smith (hereinafter "Debtor") filed a Chapter 7 voluntary petition. In her commencement documents, Debtors did not list property located at 7106 Sultana Avenue, San Gabriel, CA 91775 (hereinafter the "Property").
On April 15, 2020, Bank of New York Mellon (hereinafter "BNY Mellon") filed this motion for relief from stay, claiming, amongst other things, that an unauthorized grant deed was gifted to the Debtor as part of a scheme to delay, hinder, or defraud it. Dkt. No. 11. BNY Mellon provided evidence showing within the last year that bankruptcy petitions affected the property. Id.
Debtor claims she does "not know anything about this property[, has] never met the so called person Alice Kim[, the grantor of the deed,] who falsely added [her] to the property[,] or that [she has] any rights or interest in this property." Dkt. No. 13, Pg 3. Debtor believes that Alice Kim found information about Debtor’s bankruptcy online and added Debtor to the grant deed. Id.
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A petition filed under this title, operates as a stay to any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C § 362(a). The property of the estate includes all legal or equitable interests of the debtor in property. 11 U.S.C. §541(a)(1). A "grant deed conveys the grantor’s entire fee simple interest in the property. Citizens for Covenant Compliance v. Anderson, 12 Cal. 4th (Cal. 1995). Thus, a valid grant deed which transferred interest to Debtor would constitute property of the estate.
Looking at the four corners of the document, The Court finds that the Grant Deed is valid. That is, it fulfills all the legal requirements: (1) names of the parties, (2) signature of the grantor, (3) the word ‘grant’ is used, and (4) description of the property. Cal. Civ. Code § 1092; Dkt No. 11 Ex. 2. Furthermore, the Deed of Trust does not prevent Alice Kim from transferring title without consent of the lender. Dkt. No. 11. Ex 1. It does, however, give BNY Mellon the option to require immediate payment in full of all sums secured by this instrument when such authorization is not given. Id. at Clause 18. Thus, movant has presented a colorable claim that is sufficient for the stay to attack.
BNY Mellon listed several unauthorized grant deeds executed by the original borrower, Alice Kim. The several bankruptcy filings were numerous, and some were skeletal-like, lacking any reasonable attempt to attain a discharge. They were all dismissed except for one. Thus, the court finds that the Debtor’s petition was part of a scheme used to delay or hinder BNY Mellon by extending the protection of the automatic stay to the Property.
The Court further finds that there is no evidence of bad faith or misconduct by the Debtor and holds that such a finding is not necessary to grant relief under 11 U.S.C. § 362(d)(4). In re Dorsey, 476 B.R. at 270.
Based on the multiple bankruptcy filings and unauthorized transfers of interest in the property, the Court is inclined to GRANT the motion in its entirety, including relief from stay pursuant to 11 U.S.C. § 362(d)(4) and GRANT relief from Rule 4001(a)(3) stay.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or
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written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Raybecka Smith Pro Se
Movant(s):
THE BANK OF NEW YORK Represented By
Erin M McCartney
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: SELECT PORTFOLIO SERVICING INC
EH
Docket 9
The Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 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.
Debtor(s):
Paul J Crenshaw Represented By Sundee M Teeple
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Joseph C Delmotte
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: KINECTA FEDERAL CREDIT UNION
EH
Docket 11
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Kinetica Federal Credit Union (hereinafter "Kinetica FCU") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v.
Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Note and Security Agreement, Certificate of Title, Assignment of Contract, Loan Transaction Summary, and Kelly Blue Book Quick Values, Kinetica FCU has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity
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in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Kinetica FCU has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Ruben Alberto Ramirez Jr. Represented By
Shawn Anthony Doan
Movant(s):
Kinecta Federal Credit Union Represented By Mark S Blackman
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: HARLEY-DAVIDSON
EH
Docket 11
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Harley- Davidson claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Promissory Note and Security Agreement, Lien and Title Information, Payment History, and NADA Guides Value Report, Harley-Davidson has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no
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equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Harley-Davidson has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtors have not opposed the motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 6. DENY request under ¶15 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):
Citlali Selene Ramirez Ramirez Represented By Brian J Soo-Hoo
Joint Debtor(s):
Kristina Ramirez Estanislao Represented By Brian J Soo-Hoo
Movant(s):
Harley-Davidson Represented By Kirsten Martinez
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: WRM LA QUINTA LLC
EH
Docket 26
Service: Proper Opposition: None
The filing of a bankruptcy case creates an estate, which is comprised of all the legal and equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C §541(a)(1). Under 11. U.S.C. §362, a stay is effective automatically and immediately upon a filing of a bankruptcy petition. 3 Collier on Bankruptcy ¶ 362.02 (Richard Levin & Henry J. Sommer eds., 16th ed.). The stay applies to almost all types of formal or informal action taken against the debtor or the property of the estate. Id. at ¶ 362.03.
On March 10, 2020 (hereinafter "Petition Date"), Kristine Renee Strand (hereinafter "Debtor") filed a voluntary Chapter 7 petition. In Debtor’s commencement documents, she listed her resident at 43100 Palm Royale Drive, Unit 515, La Quinta, CA 92253 (hereinafter the "Property"). Thus, an estate was created, and the stay simultaneously took effective on March 10, 2020.
Movant, WRM La Quinta LLC (hereinafter "WRM"), filed a motion asking for relief
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from the stay or for order confirming that an automatic stay does not apply under 11
U.S.C. § 362(l). Dkt. No. 26. 11 U.S.C. § 362 (b)(22) provides that the filing of a bankruptcy petition does not create an automatic stay of the continuation of any unlawful detainer proceeding by a lessor against a debtor involving residential real property ‘in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.’" In re Furtado, 2011 Bankr. Lexis 5667, *3 (Bankr. E.D. Cal. 2011).
WRM provided the lease agreement between itself and Debtor. WRM provided a complaint it filed for unlawful detainer by Debtor on February 25, 2020. However, WRM did not provide evidence of a judgment entered for the unlawful detainer before Debtor’s Petition Date. Thus, WRM did not meet its burden, and at the time of the Petition Date the stay was in effect pursuant to the lease agreement.
Nonetheless, the evidence provided by WRM does show "cause" under 11 U.S.C. § 362(d)(1). WRM alleges that Debtor has not paid rent since filing this petition. In re Kishchenko, 2012 Bankr. Lexis 6158, * (Bankr. E. D. Cal. 2012) citing In re Ellis, 60
B.R. 432 (B.A.P 9th Cir. 1985) (ruling that cause exists for terminating the automatic stay since the Debtor failed to make post-petition payments).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). WRM has shown by the lease agreement that Debtor has no equity interest in the Property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a
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Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009).
Furthermore, the lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
Kristine Renee Strand Represented By Christopher Hewitt
Movant(s):
WRM La Quinta LLC Represented By Scott Andrews
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
From: 3/31/20 Also #10 - #17
EH
Docket 278
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
From: 12/3/19, 2/25/20, 3/31/20 Also #9 - #17
EH
Docket 199
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
EH
Docket 327
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also #9 - #17 EH
Docket 204
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20 Also #9 - #17
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20, Also #9 - #17
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20, Also #9 - #17
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20 Also #9 - #17
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
CONT Order (1) Setting Scheduling Hearing And Case Management Conference And (2) Requiring Status Report
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20 Also #9 - #16
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
EH
Docket 567
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky
2:00 PM
Jason B Komorsky
10:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Rito Isaac Silva Represented By Daniel King
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 65
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: $ 3,750.00 Trustee Expenses: $ 82.80
Attorney Fees: $ 6,725.00 Attorney Costs: $ 98.18
Accountant Fees: $ 2,621.00 Accountant Costs: $ 151.05
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):
Debi Jo Killian Represented By Gregory J Doan
Michael H Raichelson
11:00 AM
Trustee(s):
John P Pringle (TR) Represented By
Michelle A Marchisotto
11:00 AM
Docket 29
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 Fees: $ 1,389.17 Trustee Expenses: $ 7.00 Bond Payment: $ 3.56
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):
Hector Paez Valdez Represented By Carey C Pickford
Joint Debtor(s):
Yolanda Garcia Valdez Represented By Carey C Pickford
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 24
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 Fees: $ 759.50 Trustee Expenses: $ 29.77
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):
Alberto Ornelas Represented By Marlin Branstetter
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LCC
From: 2/11/20, 3/10/20, 4/21/20 EH
Docket 59
Service: Proper Opposition: Late
Parties to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Brenda Fleming Bell Represented By Suzette Douglas
Movant(s):
NewRez LLC dba Shellpoint Represented By Kirsten Martinez Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
JOSEPH MARION PHELPS Represented By Nicholas M Wajda
Movant(s):
JOSEPH MARION PHELPS Represented By Nicholas M Wajda
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Tinishia Thomas Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
From: 4/1/20 EH
Docket 464
The Court will CONTINUE the matter to September 9, 2020 at 11:00 a.m. for the issuance of a written judicial opinion.
APPEARANCES WAIVED.
Debtor(s):
Abel Solorzano Represented By Byron Z Moldo Howard Camhi
Joint Debtor(s):
Irma Solorzano Represented By Byron Z Moldo Howard Camhi
Trustee(s):
Howard B Grobstein (TR) Represented By Ivan L Kallick
11:00 AM
EH
Docket 129
Service: Proper Opposition: None
Based upon the Court's review of the supplemental declaration filed as docket number 134, the Court is inclined to GRANT the motion and approve the compromise.
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):
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
11:00 AM
EH
Docket 72
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Christopher Hewitt
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
Also #12 EH
Docket 58
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By
2:00 PM
Trustee(s):
Baruch C Cohen
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
From: 4/1/20, 4/14/20 Also #11
EH
Docket 51
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
2:00 PM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
Docket 48
BACKGROUND
On September 15, 2017, Cleo Sonnenfeld ("Creditor") filed a Chapter 7 involuntary petition against Joshua Richardson ("Debtor"). On November 8, 2017, an order for relief was entered after Debtor stipulated to its entry. That same day, the Court entered an order approving a stipulation between Creditor, Debtor, and HLE Law Group ("HLE") which avoided a deed of trust recorded on June 20, 2017, in favor of HLE and against certain real property located at 13710 Oakley Dr., Moreno Valley, CA 92555 (the "Property").
On November 8, 2018, Trustee filed a motion to approve compromise; after two continuances, and the filing of a supplemental brief, the motion was granted pursuant to order entered January 3, 2019. The pertinent terms of the compromise are the following: (a) the Property is held in constructive trust for the benefit of Creditor, who holds a money judgment in the amount of $318,778.12; (b) Trustee is to sell the Property; (c) the funds otherwise payable on account of the avoided HLE lien constitute property of the estate; (d) the bankruptcy estate shall receive 30% of all sale proceeds in excess of $303,000 until such amount reaches $25,000; (e) Creditor to file an objection to Debtor’s homestead exemption; and, importantly, (f) avoidance actions are assigned to Creditor, with Creditor to receive 70% of any recovery and the bankruptcy estate to receive the remaining 30%.
2:00 PM
On August 9, 2019, Creditor filed a complaint against Gabriela Nieto Diaz and Laguna Motors, Inc. (collectively "Defendants"; individually "Diaz" and "Laguna Motors") for (1) avoidance, recovery, and preservation of preferential transfer; (2) avoidance of intentional fraudulent transfer; (3) avoidance and recovery of fraudulent transfer; and (4) recovery and preservation of avoided intentional transfer, constructive fraudulent transfer, and preferential transfer. On October 18, 2019, default was entered against Defendants. On October 31, 2019, Creditor filed a motion for default judgment. After the Court set and held a hearing on Creditor’s motion for default judgment, the Court entered default judgment against Defendants on December 6, 2019. On March 11, 2020, Creditor filed an abstract of judgment and a writ of execution relating to each individual defendant. On April 2, 2020, the Court approved Creditor’s application to appoint a process server.
On April 8, 2020, Laguna Motors filed a motion to set aside the default judgment. On April 29, 2020, Creditor filed an opposition. On May 6, 2020, Laguna Motors filed a reply. The Court notes that the motion to set aside the default judgment is a skeletal boilerplate motion, and only after Creditor filed a detailed opposition, did Laguna Motors, in its reply, provide detailed analysis and argumentation.
ANALYSIS
FED. R. CIV. P. Rule 55(c), made applicable to bankruptcy proceedings by FED. R. BANKR. P. Rule 7055, states: "[t]he court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)." FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, provides six separate grounds for relief from a judgment. Laguna Motors argues that Rule 60(b)(1), which provides for relief from judgment in cases of "mistake, inadvertence, or excusable neglect," is inapplicable here. As noted by the parties, a determination regarding relief under Rule 60(b)(1) "is at bottom an equitable one" and the Court should consider all relevant circumstances. See, e.g., Pioneer Inv. Servs. Co. v. Brunwick Assocs., 507 U.S. 380, 395 (1993).
2:00 PM
When a party seeks relief from a default judgment pursuant to Rule 60(b)(1), the Court must apply the Falk factors. See, e.g., Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011). Specifically, the Ninth Circuit has stated that: "To determine ‘good cause,’ [under FED. R. CIV. P. Rule 55(c)] a court must consider three factors: (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the default; (2) whether it had no meritorious defense; or (3) whether reopening the default judgment would prejudice the other party." United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (quotation omitted).
Regarding the first factor, the culpability of the party seeking to set aside default, the Ninth Circuit has imposed a rather high threshold for the culpability which would justify this Court’s refusal to set aside default. To wit:
A defendant’s conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer. As we have previously explained, in this context the term "intentionally" means that a movant cannot be treated as culpable simply for having made a conscious choice not to answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process. We have typically held that a defendant’s conduct was culpable for purposes of the good cause factors where there is no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith failure to respond. As we explained in TCI Group, our approach is consistent with Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 388, 393-95 (1993), in light of which it is clear that simple carelessness is not sufficient to treat a negligent failure to reply as inexcusable, at least without a demonstration that other equitable factors, such as prejudice, weight heavily in favor of denial of the motion to set aside a default.
Id. at 1092-93 (quotations and citations omitted). The record before the Court is devoid of any evidence which would establish the culpability of Defendant under the test articulated above. While Plaintiffs argue that "[n]either Movant nor Movant’s counsel’s arguments prove the existence of any acceptable excuse for a knowing failure to respond to the Complaint," this argument does not necessarily impute
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culpability to Laguna Motors under the standard articulated in Mesle, especially considering the statement in Mesle that consciously choosing not to answer is insufficient for a finding of culpability. Rather, the record before the Court does not provide sufficient evidentiary support for a finding that Laguna Motors intended to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process.
Regarding the second factor, whether the defendant has a meritorious defense, the Ninth Circuit has stated that:
A defendant seeking to vacate a default judgment must present specific facts that would constitute a defense. But the burden on a party seeking to vacate a default judgment is not extraordinarily heavy. All that is necessary to satisfy the meritorious defense requirement is to allege sufficient facts that, if true, would constitute a defense: the question whether the factual allegation is true is not to be determined by the court when it decides the motion to set aside the default. Rather, that question would be the subject of the later litigation.
Id. at 1094. The Court notes that it is clear that motion itself does not contain a meritorious defense. The attached declaration simply states that "Laguna Motors has several valid defenses to the Complaint" and the attached proposed answer simply states that "Defendant generally denies the allegations as set forth in the Complaint." The reply, however, does appear to contain allegations which would constitute a meritorious defense. Specifically, the reply alleges that the funds paid to Laguna Motors were part of a standard, arms-length agreement, that would allow Debtor to utilize Laguna Motor’s dealer’s license and provide Debtor with various equipment. It would appear that the allegations in the reply, if true, could constitute a valid defense to Creditor’s causes of action for fraudulent transfer. It is problematic this is raised in the reply, a Laguna Motors did not make a prima facie showing in the motion, and deprived Creditor of due process.
Regarding the third factor, whether Plaintiff would suffer legal prejudice, Plaintiff has not clearly raised an argument alleging that it would suffer legal prejudice. "To be prejudicial, the setting aside of a judgment must result in greater harm than simply
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delaying resolution of the case." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001). "The standard is whether his ability to pursue his claim will be hindered." Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984); see also Thompson v. Am. Home Assurance Co., 95 F.3d 429, 433-34 (6th Cir. 1996) ("Second, for the setting aside of a default judgment to be considered prejudicial, it must result in more than delay. Rather, the delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.").
Plaintiffs’ assertion that the setting aside of default will result in increased administrative expenses does not appear to satisfy that standard for legal prejudice.
In light of the standard for vacating a default judgment in the Ninth Circuit, the Court is inclined to either: (1) DENY the motion for failure to address the appropriate legal standard in the moving papers; or (2) CONTINUE the hearing for further briefing, and the Court intends to condition the vacation of the default judgment on payment of Creditor’s reasonable attorney fees incurred as a result of Laguna Motor’s dilatory defense.
APPEARANCES REQUIRED.
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Gabriela Nieto Diaz Pro Se
Laguna Motors, Inc. Represented By Julian K Bach
Movant(s):
Laguna Motors, Inc. Represented By
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Julian K Bach
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#: 6:18-01222 Anderson, Chapter 7 Trustee v. Bobby Lee Associates, LLC
From: 1/16/19, 4/17/19, 6/12/19, 9/18/19, 10/2/19, 12/11/19, 3/25/20, 4/1/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Bobby Lee Associates, LLC Represented By Keith S Knochel
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01227 Anderson, Chapter 7 Trustee v. Wang et al
From: 9/18/19, 12/11/19, 3/25/20, 4/1/20 EH
Docket 13
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Ming Chung Wang Pro Se
LiLi Chang Represented By
Lawrence B Yang
JWLC Imports, Inc. Pro Se
2:00 PM
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
Docket 57
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
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Adv#: 6:18-01213 Pringle v. JPMorgan Chase Bank, National Association dba Chas
Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) From: 1/9/19, 3/13/19, 6/5/19, 9/4/19, 11/6/19, 4/1/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
JPMorgan Chase Bank, National Represented By
Christopher O Rivas
Chase Bank USA, National Represented By Christopher O Rivas
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
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Adv#: 6:13-01171 Schrader v. Sangha
Docket 367
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
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Adv#: 6:20-01023 Zurich American Insurance Company v. Zhang
EH
Docket 4
On December 3, 2019, Yan Zhang ("Defendant") filed a Chapter 13 voluntary petition. On March 5, 2020, Zurich American Insurance Company ("Plaintiff") filed a non-dischargeability adversary complaint against Defendant pursuant to 11 U.S.C. § 523(a)(4) and (6). The complaint also seeks an injunction against the avoiding of Plaintiff’s lien recorded against certain real property owned by Defendant.
On April 6, 2020, Defendant filed a motion to dismiss the complaint pursuant to FED.
R. CIV. P. Rule 12(b)(6), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7012. On April 29, 2020, Plaintiff filed its opposition. On May 6, 2020, Defendant filed a reply.
Plaintiff and Defendant were previously involved in litigation in both federal and state court. In federal court, Plaintiff secured a judgment of $467,690.19 against Defendant through a motion for default judgment. This default judgment was entered on causes of action for breach of contract and breach of fiduciary duty; the federal court denied
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Plaintiff’s request for default judgment on causes of action for conversion and fraud. In state court, Defendant filed a complaint against Plaintiff for defamation of title and related causes of action. The state court ultimately entered judgment in favor of Plaintiff on the merits and awarded Plaintiff costs and fees in the amount of
$42,533.81.
In an unusual twist, Defendant is now attempting to use the collateral estoppel effect of these judgments, both of which were against Defendant, to defeat Plaintiff’s non- dischargeability causes of action.
STANDARD FOR MOTION TO DISMISS
FED. R. CIV. P. Rule 12(b)(6), made applicable in adversary proceedings through FED. R. BANKR. P. Rule 7012, provides that 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 L.Ed.2d 929 (2007).
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). 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).
ANALYSIS
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The parties appear to agree regarding the standard for the use of issue preclusion. As the Bankruptcy Appellate Panel recently outlined
Issues preclusion applies in nondischargeability proceedings. Because the relevant judgment was rendered under California law, full faith and credit principles require us to apply California issue preclusion law.
Under California law, issue preclusion is available if:
the issue sought to be precluded from relitigation is identical to that decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; (4) the decision in the former proceeding is final and on the merits; and (5) the party against whom preclusion is sought was the same or in privity with, the party to the former proceeding.
In re Tinajero, 2018 WL 4939467 at *5 (B.A.P. 9th Cir. 2018) (citations omitted) (quoting In re Plyam, 530 B.R. 456, 462 (B.A.P. 9th Cir. 2015).
Defendant argues that the district court’s failure to issue a default judgment as to the cause of action for fraud should be collateral estoppel as to the Plaintiff’s § 523(a)(4) cause of action. This argument is clearly flawed because the district court’s judgment does not satisfy any of the first three requirements identified above.
First, as is noted by Plaintiff, section 523(a)(4) is written in the disjunctive, requiring "fraud or defalcation." Naturally, the fact that the statute is written in the disjunctive implies that fraud and defalcation have different elements. See, e.g., Bullock v.
BankChampaign, N.A., 569 U.S. 267, 275 (2013) (distinguishing between embezzlement, larceny, fraud, and defalcation). As a result, even a judgment in favor of Defendant on Plaintiff’s cause of action for fraud would not bar a subsequent § 523(a)(4) claim.
Second, there is no judgment for Defendant on the cause of action for fraud. Instead, the district court simply held that Plaintiff had not sufficiently pled the cause of action for fraud so that entry of a default judgment in Plaintiff’s favor was not appropriate.
An issue is actually litigated when it is properly raised by a party’s pleading, when it is submitted to the court for determination, and when the court actually determines the issue. See In re Harmon¸ 250 F.3d 1240, 1247 (9th Cir. 2001). In reviewing Plaintiff’s motion for default judgment, the district court concluded that Plaintifft had not
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properly pled the issue, precluding the district court’s determination of the issue. Similarly, the issues were not necessarily decided by the district court, which simply concluded that "[t]he first and fourth causes of action are insufficiently pled and therefore fail to satisfy the first Eitel factor." [Dkt. No. 1, pg. 23]. Because the district court found that Plaintiff failed to properly plead the causes of action for conversion and fraud, the district court did not necessarily decide any of the underlying substantive issues.
Defendant next argues that the Court should apply collateral estoppel to prevent Plaintiff from arguing that the judgment for fees and costs awarded in state court is non-dischargeable. While Defendant asserts that that state court case is entitled to preclusive effect, there is no credible argument regarding collateral estoppel in the motion to dismiss. To the extent that Defendant is arguing that the state court’s finding that Defendant acted with "a lack of good faith" somehow precludes Plaintiff from establishing a "willful and maliciousness" injury, the Court finds such argument to be wholly without merit.
Defendant also appears to be challenging whether Plaintiff has adequately alleged the applicability of §523(a)(4) to the state court judgment. While it appears true that Defendant was no longer acting in a fiduciary capacity at the time the state court judgment was rendered, it does not necessarily follow that the state court judgment – awarding Plaintiff costs and fees related to defending the district court judgment – cannot be considered to be non-dischargeable under the same statutory provisions.
See, e.g., Cohen v. de la Cruz, 523 U.S. 213, 223 (1998) (holding that all liability on account of a debtor’s fraudulent conduct, including attorneys’ fees and costs available under state law). The Court concludes that whether the state court judgment constitutes a debt arising from the same course of conduct upon which the district court judgment is based, or is sufficiently distinct to be severed from the district court judgment, is a mixed question of fact and law not appropriately decided on the pleadings and not adequately briefed in the motion to dismiss. In any event, this line of argument would not preclude Plaintiff from using the facts related to the state court action as a basis for a non-dischargeable judgment under § 523(a)(6).
Finally, Defendant argues that the Court should dismiss the third cause of action – for injunctive relief – for failure to state a claim. The argument presented in the motion to dismiss appears irrelevant to the request being made. Nevertheless, the Court notes that there is a separate contested matter – Defendant’s lien avoidance motion – which would appear to be the more appropriate place to litigate the propriety of Defendant’s lien avoidance motion. The resolution of that contested matter – whether in Plaintiff’s or Defendant’s favor – would seem to resolve the cause of action for injunctive relief. For that reason, the Court is inclined to dismiss the cause of action for injunctive relief from this adversary proceeding, with Plaintiff reserving all rights to bring its
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arguments in the lien avoidance proceedings.
The Court is inclined to DENY the motion as to the first and second causes of action, and GRANT the motion as to the third cause of action.
APPEARANCES REQUIRED.
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Defendant(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Plaintiff(s):
Zurich American Insurance Represented By Lincoln V Horton
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:20-01023 Zurich American Insurance Company v. Zhang
From: 4/16/20 Also #19
EH
Docket 1
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Defendant(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Plaintiff(s):
Zurich American Insurance Represented By Lincoln V Horton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 271
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/16/20 Also #3 & #4 EH
Docket 108
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of
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Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
the claim of Bank One, filed on February 28, 2017, in the amount of $4,095 ("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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
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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.
As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
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The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/16/20 Also #2 & #4 EH
Docket 109
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of
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Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
(2) the claim of Bank One, filed on February 28, 2017, in the amount of $4,095 ("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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
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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.
As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
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The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/16/20 Also #2 & #3 EH
Docket 107
On August 30, 2016, Efren Estrada ("Debtor") filed a Chapter 7 voluntary petition. On December 12, 2016, Debtor received a discharge. The Chapter 7 trustee subsequently employed counsel and began to administer assets of the estate.
On March 14, 2017, Debtor filed a motion to convert the case to Chapter 13. The Chapter 7 trustee filed opposition to the motion on March 22, 2017. After the Court continued the initial hearing, Debtor filed a motion to vacate discharge on April 26, 2017. The Chapter 7 trustee filed its opposition on May 3, 2017. On June 13, 2017, the Court issued an opinion granting Debtors’ motion to vacate discharge. On July 11, 2017, the case was converted to Chapter 13. On August 29, 2017, Debtor’s Chapter 13 plan was confirmed, providing for a 100% distribution to unsecured creditors.
On March 3, 2020, Debtor filed objections to three different claims: (1) the claim of
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Bank of America, filed on February 28, 2017, in the amount of $4,097 ("Claim 1");
(2) the claim of Bank One, filed on February 28, 2017, in the amount of $4,095 ("Claim 2"); and (3) the claim of Wells Fargo Bank, filed on February 28, 2017, in the amount of $10,056 ("Claim 6"). All three of these claims were filed by the Chapter 7 trustee. The Court has not received any opposition to the claim objections.
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
11:00 AM
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.
As noted in the background section above, Claim 1, Claim 2, and Claim 6 were all filed by the Chapter 7 trustee before the case was converted to Chapter 13. Debtor argues that all three claims should be disallowed because the creditors for whom the claims were filed have not accepted payment from the Chapter 13 trustee.
Specifically, Debtor attaches, as Exhibit 2, correspondence received from the Chapter 13 trustee which indicates that the disbursements to Wells Fargo Bank and Bank of America were returned as "unable to locate/identify account" and that the disbursement to Bank One has not been accepted.
Debtor relies upon 11 U.S.C. § 502(b)(1) as provided the grounds for the Court to disallow Claim 1, Claim 2, and Claim 6. The Court notes that the Chapter 7 trustee filed the claims after Debtor listed the claims on Schedule F, and Debtor has not provided any evidence explaining why the claims were scheduled if they were not enforceable against Debtor. Furthermore, it would appear, as noted in Exhibit 2, that the creditors failure to accept the funds would result in the funds being forwarded to the Court as "unclaimed funds," and, because Debtor’s plan is a 100% plan, the funds would ultimately be returned to Debtor.
It is not clear that disallowing the subject claims, rather than pursuing the typical unclaimed funds process, is the proper result in this case, especially considering that it does not appear that the Chapter 13 trustee received any response from Bank One.
11:00 AM
The Court is inclined to OVERRULE the objection, or, alternatively, to CONTINUE the matter for Debtor to provide supplemental evidence establishing that the claims are not enforceable against Debtor.
APPEARANCES REQUIRED.
Debtor(s):
Efren Diaz Estrada Represented By
W. Derek May
Movant(s):
Efren Diaz Estrada Represented By
W. Derek May
W. Derek May
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 44
- NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Movant(s):
Wells Fargo Bank, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 24
- NONE LISTED -
Debtor(s):
George Clarence Maret Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Maret Represented By Dana Travis
Movant(s):
George Clarence Maret Represented By Dana Travis
Elizabeth Ann Maret Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 22
Service: Proper Opposition: Yes
The Court is inclined to CONTINUE the matter for: (1) Creditor to provide alternative evidence of the fair market value of the subject real property; (2) Debtor to establish the location of residence of her husband; and (3) Creditor to file a supplemental response regarding Debtor’s entitlement to the enhanced exemption.
APPEARANCES REQUIRED.
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 34
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 27
On December 10 2019, Priscilla Richardson ("Debtor") filed a Chapter 13 voluntary petition. On March 11, 2020, Debtor’s Chapter 13 plan was confirmed.
On February 13, 2020, LVNV Funding, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $2,564.28 ("Claim 4"). On April 10, 2020, Debtor filed an objection to Claim 4. Debtor argues that Claim 4 is barred by the statute of limitations. Creditor did not file any opposition.
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
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." 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
11:00 AM
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 4 appears to be based on a retail credit card. Therefore, it appears that Claim 4 fits within the category established by CAL. CODE CIV. P. § 337, and that the statute of limitations is four years. The proof of claim identifies a last payment date of October 4, 2001. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 4 is unenforceable.
Additionally, the Court notes that Creditor has failed to oppose 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, DISALLOWING Claim 4 in its entirety.
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):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Movant(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 20
On January 13, 2020, Theodore Cramer ("Debtor") filed a Chapter 13 voluntary petition. On May 1, 2020, Debtor’s Chapter 13 plan was confirmed.
On February 25, 2020, the Internal Revenue Service ("Creditor") filed a proof of claim for an unsecured claim in the amount of $10,751.91, identifying $9,957.18 as entitled to priority ("Claim 9"). On April 14, 2020, Debtor filed an objection to Claim 9, arguing that Claim 9 should be reduced by $4,358. On April 23, 2020, Creditor filed an amended claim, reducing Claim 9 by $4,358.
Creditor having amended Claim 9 to reflect the relief requested in the instant claim objection, the Court is inclined to OVERRULE the objection as MOOT.
11:00 AM
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):
Theodore Cramer Represented By Kevin Tang
Movant(s):
Theodore Cramer Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 17
On February 10, 2020, Luis Escoto ("Debtor") filed a Chapter 13 voluntary petition.
On March 11, 2020, the Riverside County Tax Collector filed a proof of claim for a secured claim in the amount of $9,396.97 ("Claim 2"). On March 24, 2020, Jesus & Marylou Moya (collectively, "Creditors") filed a proof of claim for a secured claim in the amount of $137,476.25 ("Claim 3"). Claim 3 includes $9,396.97 for unpaid taxes on the basis that the deed of trust held by Creditors requires Debtor to pay taxes affecting the property.
On April 13, 2020, Debtor filed an objection to Claim 3 on the basis that the amount related to unpaid taxes was already reflected in Claim 2. On April 28, 2020, Creditors filed an opposition. It is not exactly clear what Creditors are arguing in opposition, although it appears that Creditors are suggesting that if Debtor makes payments toward the taxes, such payments should be applied to both Claim 2 and Claim 3.
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)(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;
Here, it does not appear that Creditors are the property party to assert a claim for the unpaid taxes. While Creditors may have some sort of right of indemnification pursuant to the deed of trust, the filing of Claim 2 already assures Creditors that the amounts owing for unpaid taxes will be included in Debtor’s Chapter 13 plan, particularly since there is no evidence Creditors paid the taxes and Creditors have not pointed to language in the loan documents that the obligation has matured.
The Court is inclined to SUSTAIN the objection, DISALLOWING arrears in Claim 3 to the extent the amounts are included in Claim 2.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Movant(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #11 EH
Docket 0
- NONE LISTED -
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria T. Acosta Represented By Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steven L. Lopez Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elsa R Diaz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anthony Sanchez Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Roberto Sanchez Represented By Lauren M Foley
Joint Debtor(s):
Teresa Osorio Sanchez Represented By Lauren M Foley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sergio L Valdez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Plascencia Represented By
Raj T Wadhwani
Joint Debtor(s):
Ana Veronica Plascencia Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eric M. Aune Represented By
Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles Boehmer Represented By Paul Y Lee
Joint Debtor(s):
Tamy Boehmer Represented By Paul Y Lee
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):
Miguel Castro Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Louis Halvas Represented By
Paul Y Lee
Joint Debtor(s):
Michelle Halvas Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Stewart James Denningham Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramon Federico Hernandez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lea Nicole Orrrispress Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michele Marie Ruggieri Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe Pielmeier Represented By
Marcus Gomez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christopher R. Stark Represented By
M. Wayne Tucker
Joint Debtor(s):
Anissa L. Stark Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Renee Espinoza Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Andrea Melissa Hughes Represented By Michael T Reid
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elvira Navarrete Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Rafael Ojeda Navarrete Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Josephine Jaques Represented By Randolph R Ramirez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Thompson Harris Cooper VI Represented By Sundee M Teeple
Joint Debtor(s):
Dawnetra Genene Cooper Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lorane L Luna Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #90 EH
Docket 0
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 16
On February 28, 2020, Juan Rios ("Debtor") filed a Chapter 13 voluntary petition. On March 3, 2020, Cavalry Investments, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $7,595.19 ("Claim 1"). On April 3, 2020, Debtor filed an objection to Claim 1. Debtor argues that Claim 1 is barred by the statute of limitations. Creditor did not file any opposition.
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 1 states that it is based upon an auto loan. Therefore, it appears that Claim 1 fits within the category established by CAL. CODE CIV. P. § 337, and that the statute of limitations is four years. The proof of claim identifies a charge off date of June 4, 1998. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 1 is unenforceable.
Additionally, the Court notes that Creditor has failed to oppose 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, DISALLOWING Claim 1 in its entirety.
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 Rios Represented By
Dana Travis
Movant(s):
Juan Rios Represented By
Dana Travis Dana Travis Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #41 EH
Docket 0
- NONE LISTED -
Debtor(s):
Juan Rios Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Young Shin Kim Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Martin Servin Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edward Perez Represented By Michael E Clark
Joint Debtor(s):
Ellen Denise Perez Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joe Meraz Represented By
Rabin J Pournazarian
Joint Debtor(s):
Rosanna Elizabeth Meraz Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joy T. Weedon Represented By Clifford Bordeaux
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Miguel A. Ruelas Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Yizel I. Ruelas Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Elsy G. Mejia Represented By
Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Denise A Lemieux Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Anthony Moral Represented By Kevin M Mahan
Joint Debtor(s):
Jennifer Rios Represented By
Kevin M Mahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Paul Trevino Represented By
Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Erik L. Liebherr Represented By
Joseph Arthur Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Vallejo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bianca C. Ramirez Represented By Peter Recchia
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eleazar Jaime Ochoa Pro Se
Joint Debtor(s):
Evette Luz Ochoa Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Karen Ann Hurd Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brenda M Rees Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ana D Munoz Represented By Anthony Wilaras
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kelley Jean Del Valle Represented By Solomon A Cheifer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #62 EH
Docket 19
Service: Proper Opposition: None
The Court having reviewed the motion, notice appearing proper, no opposition having been filed, and good cause appearing, the Court is inclined to GRANT the motion, avoiding the junior lien that has recording number 2007-0375892, effective upon receipt of 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):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
Michelle Cadena Quinn Represented By Steven A Alpert Steven A Alpert Steven A Alpert
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #61 EH
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angela Helen Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kristine Renee Strand Represented By Christopher Hewitt
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Dana Edward Pettus Represented By
Raj T Wadhwani
Joint Debtor(s):
Andrea Lynn Doster Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Javier Escareno Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Lynn Irelandalwine Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Loi Phuoc Au Represented By
Todd B Becker
Joint Debtor(s):
Nancy O Sengdara-Au Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Bernice H Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 221
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Brooke R Adams Represented By Lauren Rode
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 151
- 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 157
- 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
Docket 72
- 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
Docket 36
- NONE LISTED -
Debtor(s):
Gilberto Martinez Villa Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 66
- NONE LISTED -
Debtor(s):
Mike A. Granados Jr. Represented By Gregory M Shanfeld
Joint Debtor(s):
Carolynne Jeannette Granados Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
- NONE LISTED -
Debtor(s):
Tiffany Venice Turner Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 87
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Jesus N Aguilera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 83
- NONE LISTED -
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 98
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 106
- NONE LISTED -
Debtor(s):
Heather Ann Pessoa Bond Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Phonmany Phengphavong Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Orlando Soriano Represented By
James D. Hornbuckle
Joint Debtor(s):
Veronica Vera-Soriano Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- NONE LISTED -
Debtor(s):
Albert E. Abdou Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 39
- NONE LISTED -
Debtor(s):
Eugenio Giuseppe Mannella Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
David Anthony Meisland Represented By Marc A Duxbury
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
(Debtor paid $150.00 on 4/22/20 still short $10.00 for final payment)
Also #40 EH
Docket 25
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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
2:00 PM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20
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
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 83
Service: Proper Opposition: None
On October 3, 2018 ("Petition Date"), Mariam T. Jobe (hereinafter "Debtor") filed a Chapter 13 voluntary petition. In her commencement documents, Debtor listed her residence at 8118 Orchid Dr., Corona, CA 92880 (hereinafter the "Property") and secured by Wells Fargo Home Mortgage. On February 4, 2020, Debtor’s petition was changed to a Chapter 7 petition.
On April 22, 2020, U.S. Bank, National Association, as trustee for Citigroup Mortgage Loan Trust 2006-WFHE2, Asset Backed Pass-Through Certificates, Series 2006-WFHE2 (hereinafter "U.S. Bank") filed this
motion for relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor."
11:00 AM
People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust, Corporate Assignment of Deed of Trust, Loan Modification Agreement, U.S. Bank has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). U.S. Bank has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g).
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. Grant relief from ¶¶ 2 and 3. Debtor is a borrower as defined in Cal. Civ. Code § 2920.5(c)(2)(c).
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):
Mariama T Jobe Represented By Gary S Saunders
11:00 AM
Movant(s):
U.S. Bank National Association, as Represented By
Nancy L Lee
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT : STEARNS LENDING LLC
CASE DISMISSED 6/20/19 REOPENED 3/9/20
EH
Docket 55
Service: Proper Opposition: None
On March 25, 2019 ("Petition Date"), Innocenti, LLC (hereinafter "Debtor") formerly doing business as Atlantic Funding and Medallion Capital Financial filed a Chapter 7 voluntary petition. Debtor did not list the property located at 29941 Vacation Drive, Canyon Lake, CA 92587 (hereinafter the "Property") in its commencement documents.
Prior to the filing of this petition, Stearns Lending, LLC (hereinafter "Stearns Lending"), on August 26, 2014, signed an agreement with Jonathan Guillen and Sammantha Guillen to lend them money to buy the Property. Dkt. No. 55, Ex. 1. The agreement clearly states that Deed of Trust is "not assumable without the approval of the department of Veterans Affairs or its authorized agent." Id. On November 27, 2017, Sammantha Guillen filed a Chapter 7 petition. 6:17-bk-19777-SC. She included the Property in her commencement document. Id. at Dkt. No. 8. While her petition
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was proceeding, Stearns Lending claims that Jonathan and Sammantha Guillen become delinquent on their mortgage payments. Dkt. No. 55, Pg. 12.
On March 1, 2017, before attaining a discharge, Sammantha Guillen and Jonathan Guillen granted the deed to Wounded Warriors of America a California Corporation (hereinafter "Wounded Warriors"). Id. at Ex. 6. It appears that no approvable from the department of Veterans Affairs nor its authorized agent was given. Id.
On March 20, 2018, Wounded Warriors transferred fifty percent of its interest to Irene Garcia without consideration. Id. at Ex. 8. On July 15, 2018, Wounded Warrior then transferred its interest of the Property to Medallion Capital Financial via Deed of Trust. Id. at Ex.7. On March 15, 2019, Debtor filed this petition. Stearns Lending recorded a Notice of Sale on June 11, 2019 for the Property. On July 25, 2020, Debtor’s case was closed because it failed to attend the 11 U.S.C. § 341(a) meeting of the creditors. Dkt. No. 49.
On July 8, 2019, Lloyd Furman Harris, doing business as Medallion Capital Financial, filed a Chapter 7 petition. 1:19-bk-11678. Lloyd Furman Harris’ case was dismissed and later closed on September 17, 2019, because he failed to appear at the 11 U.S.C. § 341(a) meeting of the creditors. Id.
On September 5, 2019, Tom Boy Farms doing business as Medallion Capital Financial and Atlantic Funding filed a Chapter 7 petition. 1:19-bk-12229. An individual named Raul Aguila filed Tom Boy Farms’ case. Dkt. No. 55, Ex. 11. An order (1) dismissing Chapter 7 Case with a 180-day bar to refiling by Raul Aguila or doing business as Medallion Capital Financial and Atlantic Funding, (2) annulling the automatic stay, and (3) regarding the automatic stay will not apply to property described as West Hills Property was entered on October 4, 2019. Id.
On October 8, 2019, Stearns Lending, claiming it had no prior notice of this bankruptcy filing, proceed with a sale because it alleges that Debtor had been delinquent, totaling $97,227.94, since April 1, 2017. Dkt. No. 55, Pg. 12. On October 24, 2019, the Trustee’s Deed Upon Sale was recorded with the County of Riverside. Stearns Lending, on March 9, 2020, filed a motion to reopen this petition to file this motion for relief from stay. Stearns Lending has requested a relief from stay under 11
U.S.C. §§ 362(d)(1) and 362(d)(2), in rem relief under 11 U.S.C. § 362(d)(4), and
11:00 AM
annulment of the stay to validate the Notice of Sale and the foreclosure sale.
Stearns Lending listed several unauthorized, executed deeds. The several bankruptcy filings were numerous and lacked any reasonable attempt to attain a discharge. They were all dismissed except for one. Thus, the court finds that the Debtor’s petition was part of a scheme used to delay or hinder Stearns Lending by extending the protection of the automatic stay to the Property.
The facts of this case give enough weight to warrant retroactive annulment of the stay:
the number of filings; (2) circumstances indicate an intention to delay and hinder creditors; (3) Stearns Lending did not know of the stay, (4) Stearns Lending, after learning of the stay, took steps not to violate the stay; (5) and stay relief will promote judicial economy. In re: Oya, 2019 Bankr. Lexis 3303 (B.A.P. 9th Cir. 2019).
Based on the multiple bankruptcy filings and unauthorized transfers of interest in the property, the Court is inclined to GRANT the motion in its entirety, including annulment and relief from stay pursuant to 11 U.S.C. § 362(d)(4) and GRANT relief from Rule 4001(a)(3) stay.
APPEARANCES REQUIRED.
Debtor(s):
INNOCENTI, LLC Represented By Rhonda Walker
Movant(s):
Stearns Lending, LLC Represented By
Erin M McCartney
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
Docket 38
- NONE LISTED -
Debtor(s):
Rudy Michael Castillo Represented By Nicholas M Wajda
Joint Debtor(s):
Monica Michelle Castillo Represented By Nicholas M Wajda
Movant(s):
Wells Fargo Bank, N.A. Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 38
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association (hereinafter "U.S. Bank") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtors must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtors have opposed the motion. Debtors state that "they were ill and fell behind in
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payments." Dkt. No. 40, Decl. of Atorney[sic] of Debtor. They have been trying to bring the account current ever since. Id. They have made one payment on April 24, 2020 and another two payments on May 2, 2020. Id. Debtors are requesting that U.S. Bank either withdraw its motion or agree to stay current adequate protection agreement.
Parties are to update the Court on the status of adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Movant(s):
U.S. Bank National Association Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CENLAR FSB
EH
Docket 35
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Censlar FSB as servicer for CitiMortgage, Inc. (hereinafter "Cen FSB") claims that post- petition preconfirmation and post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post- petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may
11:00 AM
deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. Grant relief from ¶¶ 2 and 3. Grant relief from the Co-debtor stay pursuant to 11 U.S.C. § 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):
Margarito Horta Represented By
James D. Hornbuckle
Movant(s):
Cenlar FSB as servicer for Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 35
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C § 362(d)(1) "cause" must be shown. U.S. Bank, National Association (hereinafter "U.S. Bank"), as trustee on behalf of the holders of the Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates, Series 20070-OPX, claims that post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
11:00 AM
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. Grant relief pursuant to ¶¶ 2 and 3. Co- debtor stay pursuant to 11. U.S.C. § 1301 is terminated.
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):
Florence Marie Rodriguez Represented By Steven A Alpert
Movant(s):
U.S. Bank National Association as Represented By
Nancy L Lee Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: REPROP INVESTMENTS, INC
EH
Docket 47
Service: Shortened Notice Opposition: Debtor
On January 26, 2020 ("Petition Date"), Saverio Sam Lanni (hereinafter "Debtor") filed a Chapter 7 voluntary petition. In her commencement documents, Debtor did not list the property located at 1501, 1510, 1600, 1611, and 1900 Eagle Creek Loop and 72521 State Highway 3, Trinity Center, Trinity County, California 96091 also known as Trinity County Assessor Parcel Numbers 0004-120-19, 004-120-20, 004-390-08, and 004-390-20 (hereinafter the "Property").
On April 4, 2020, ReProp Investments, Inc. (hereinafter "ReProp") filed a relief from stay motion on shortened notice, claiming Debtor, without indication of court approval, executed a Deed of Trust in January 2020 on the behalf of Feeling Groovy at Eagle Creek Ranch, LLC. Dkt. No. 47. Decl. of Dustin E. Owens in Support of Motion for Relief from the Automatic Stay. Alleging Debtor’s act was done in bad faith and as a part of a scheme to delay, hinder or defraud it, ReProp seeks in rem relief in addition to relief from stay for the Property. Id.
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ReProp provided the Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement. Id. ReProp has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); see also 11 U.S.C § 362(d)(1).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). ReProp has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Thus, the Court is inclined to GRANT relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. GRANT the request from relief pursuant to 11 U.S.C. § 362(d)(4) based on multiple bankruptcy filings affecting the Property.
APPEARANCES REQUIRED.
Debtor(s):
Saverio Sam Lanni Represented By Kevin C Ronk Laura J Portillo
11:00 AM
Movant(s):
ReProp Investments Inc. Represented By Dustin E Owens
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
From: 4/14/20, 4/28/20 EH
Docket 15
Service: Proper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I)-(II) because Debtor had (a) three bankruptcy cases dismissed in the previous year; and (b) had a case dismissed for failure to file requirement documents. Section 362(c)(4)
(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely implies that Debtor has a higher paying job now, without any detail describing the change in Debtor’s financial circumstances. As a result, the Court is inclined to CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
Debtor(s):
Robert Joseph Slapp III Represented By
11:00 AM
Movant(s):
Nicholas M Wajda
Robert Joseph Slapp III Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 8
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Honda Lease Trust (hereinafter "Honda") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Certificate of Title, Lease Agreement, NADA Guides Value Report, and the Statement of Intention, Honda has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtors have no equity in the property and (2) property is not necessary for an effective organization—
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must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Honda has provided evidence that Debtors do not have any equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtors also have the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtors have not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). The Court notes that the Trustee has within sixty days after the petition to assume the less. 11 U.S.C. §365(d). Nonetheless, because the Trustee did not object to the motion and the Debtors have stated their intent to reject the lease, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Rudy Antonio Cifuentes Represented By Marlin Branstetter
Joint Debtor(s):
Blanca Yolanda Cifuentes Represented By Marlin Branstetter
11:00 AM
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Charles W Daff (TR) Pro Se
12:00 PM
Docket 5
- NONE LISTED -
Debtor(s):
Dennis Lapid Pro Se
Movant(s):
Dennis Lapid Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 11
Service: Proper Opposition: None
Having reviewed the motion, and good cause appearing, the Court will 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):
Juan Vargas Represented By
Todd L Turoci
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Movant(s):
BMO HARRIS BANK N.A. Represented By
Raffi Khatchadourian
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 12/11/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Pro Se
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:19-01144 Whitmore v. Hammond
From: 12/18/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Defendant(s):
Kenneth Hammond Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
From: 11/13/19, 12/18/19 Also #5
EH
Docket 40
On October 16, 2017, Christy Hammond ("Debtor") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 5918 Ridgegate Dr., Chino Hills, CA 91709 (the "Property"). On January 29, 2018, Debtor obtained a discharge.
On April 23, 2018, the Chapter 7 Trustee filed a notice of assets, subsequently employing an attorney, and a real estate broker. Debtor opposed Trustee’s request to hold a real estate broker, and the Court approved the application after a hearing held on March 27, 2019.
On October 16, 2019, Trustee filed (1) a motion for turnover of property (the "Motion"); and (2) an adversary complaint against Kenneth Hammond seeking turnover of property from Debtor’s non-filing spouse. The Motion requests that the
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Court order the occupants to vacate the Property within twenty days, while outlining certain permitted actions in the event that the occupants do not timely vacate the Property.
On October 30, 2019, Debtor filed her opposition to the Motion. Debtor’s primary argument is that administration of the Property will not produce a consequential benefit to the estate. According to Trustee, the value of the Property is
$600,000-$615,000, the Property is encumbered by security interests totaling
$402,000, Debtor claimed a homestead exemption in the amount of $100,000, and costs of sale/repairs would total $63,000. These figures would produce nonexempt equity in the range of $35,000 to $50,000. In Debtor’s opposition she asserts that Trustee understates the needed repairs by $52,960. Debtor also contends that Trustee overstates the fair market value of the Property by $50,000-$65,000. Finally, Debtor has increased her homestead exemption from $100,000 to $175,000 pursuant to an amended Schedule C filed October 30, 2019 [Dkt. No. 44]. Debtor also raises various procedural and equitable arguments in her opposition.
On November 6, 2019, Trustee filed a reply. Of particular note is that Trustee states that it will file an objection to Debtor’s amended homestead exemption.
11 U.S.C. § 542(a) states:
Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
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The standard for a turnover action is well established:
"To prevail in a turnover action under § 542, the party seeking turnover must establish (1) that the property is or was in the possession, custody or control of an entity during the pendency of the case, (2) that the property may be used by the trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate."
In re Bailey, 380 B.R. 486, 490 (B.A.P. 6th Cir. 2008); see also In re Newman, 487
B.R. 193 (B.A.P. 9th Cir. 2013). Here, the parties dispute the third prong of the turnover standard identified above.
The Court need not address the parties’ dispute regarding the fair market value of the Property because Debtor’s amended Schedule C, filed October 30, 2019, increased Debtor’s homestead exemption by $75,000. Because Trustee’s own calculation results in realizable equity in the range of $35,000 to $50,000, Debtor’s increased claimed homestead exemption eliminates all realizable equity in the subject property. Pursuant to FED. R. BANKR. P. Rule 1009(a), Debtor has a right to amend her schedules "as a matter of course" until the case is closed. And, pursuant to FED. R. BANKR. P. Rule 4003(c), the party objecting to a claimed exemption has the burden of proof.
Therefore, in the absence of a formal objection, the Court must assume that Debtor’s amended homestead exemption is valid. If Debtor’s amended homestead exemption is valid, then the Property does not have consequential value to the bankruptcy estate.
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The Court is inclined to CONTINUE the matter for Trustee to file an objection to Debtor’s amended homestead exemption.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
Also #4 EH
Docket 49
On October 16, 2017, Christy Hammond ("Debtor") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 5918 Ridgegate Dr., Chino Hills, CA 91709 (the "Property"). On January 29, 2018, Debtor obtained a discharge.
On April 23, 2018, the Chapter 7 Trustee filed a notice of assets, subsequently employing an attorney, and a real estate broker. Debtor opposed Trustee’s request to hold a real estate broker, and the Court approved the application after a hearing held on March 27, 2019.
On October 16, 2019, Trustee filed (1) a motion for turnover of property (the "Turnover Motion"); and (2) an adversary complaint against Kenneth Hammond seeking turnover of property from Debtor’s non-filing spouse. On October 30, 2019, Debtor filed an opposition to the Turnover Motion, while also increasing her
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homestead exemption to $175,000.
On November 20, 2019, Trustee filed an objection to Debtor’s claimed homestead exemption. Trustee argues that Debtor has not established that she is entitled to claim the increased homestead exemption set forth in CAL. CODE CIV. P. § 704.730(a)(3)(B). On December 4, 2019, Debtor filed her opposition. Debtor argues that Trustee has the burden of proof in objecting to the claimed homestead exemption, and that Trustee has not met this burden. Alternatively, Debtor argues that she has adequately established her entitlement to the $175,000 homestead exemption. Specifically, Debtor argues that the increased homestead exemption is based on the alleged disability of her non-filing spouse, Kenneth Hammond, who served in the U.S. Navy. On December 11, 2019, Trustee filed a reply and a variety of evidentiary objections.
Burden of Proof
As a preliminary matter, the parties disagree on the burden of proof when a Trustee files an objection to a claimed exemption. FED. R. BANKR. P. Rule 4003(c) states: "In any hearing under this rule, the objecting party has the burden of proving that the exemptions are not properly claimed." Trustee argues that the Supreme Court, however, held in the case of Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15 (2000) that the burden of proof should be determined by reference to state law. In Raleigh, the Supreme Court was considering whether the burden of proof, in the context of a claim objection, is determined by reference to state law. Citing cases dating back to before World War 2, the Supreme Court stated that "we have long held the burden of proof to be a ‘substantive’ aspect of a claim. That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it." Id. at 20-21.
The Supreme Court also stated:
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Congress of course may do what it likes with entitlements in bankruptcy, but there is no sign that Congress meant to alter the burdens of production and persuasion on tax claims. The Code in several places, to be sure, establishes particular burdens of proof. But the Code makes no provision for altering the burden on a tax claim, and its silence says that no change was intended.
Id. at 21-22 (citation omitted). The above excerpt ended with footnote 2, which states:
The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is "prima facie evidence of the validity and amount of the claim," this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance.
Id.
Thus, the Supreme Court made it clear that Congress was permitted to preempt state law burdens in the drafting of the Bankruptcy Code. Specifically, the Supreme Court cited 11 U.S.C. §§ 362(g), 363(o), 364(d)(2), 547(g), and 1129(d) as examples of instances where the Code specifically articulates a burden of proof. While under principles of preemption it is clear that Congress may delineate an applicable burden in the Bankruptcy Code, in the context of an objection to a homestead exemption, it is the Federal Rules of Bankruptcy Procedure, not the Bankruptcy Code itself, which articulates a burden of proof. As Trustee points out in its reply brief, 28 U.S.C. § 2072 provides that federal rules of procedure "shall not abridge, enlarge or modify any substantive right."
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Given that the Supreme Court has determined that a burden of proof is substantive, it would appear that a provision in the Federal Rules of Bankruptcy Procedure could not alter the applicable burden of proof absent a Code provision providing for such alteration.
After 2000, a number of Court have addressed the issue of whether Raleigh dictates that FED. R. BANKR. P. Rule 4003(c) is invalid when a debtor exempts property under state law, and state law identifies its own burden for claiming that exemption. In California, CAL. CODE CIV. P. § 703.580(b) provides that the party claiming the exemption has the burden of proof. Therefore, in California, the applicable state law provision is in conflict with FED. R. BANKR. P. Rule 4003(c).
The first case to contain an extended analysis of this conflict, post-Raleigh, appears to be In re Greenfield, 289 B.R. 146 (Bankr. S.D. Cal. 2003). In re Greenfield noted that "the propriety of Rule 4003(c) in a case such as this has been called into question." Id. at 148. Ultimately, In re Greenfield stated the following:
The court in Raleigh did indeed look to state law in placing the burden. However, Raleigh dealt with a situation – an objection to a proof of claim – for which neither the Bankruptcy Code nor the Bankruptcy Rules provide a burden of proof . . .
Contrarily, in the case of exemptions and objections thereto, the Rules do provide a specific and clear allocation of the burden – Rule 4003(c). Accordingly, the Raleigh case may not apply.
Id. at 149.
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Then, in 2005, a concurring opinion at the Bankruptcy Appellate Panel, which like In re Greenfield did not actually reach a conclusion on the issue, appeared to lean the opposite direction:
There is reason to doubt the validity of the allocation, in Federal Rule of Bankruptcy Procedure 4003(c), of the burden of proof to the party objecting to a claim of exemption, especially an exemption claimed under state law.
At least with respect to state-law exemptions, the better view, after the Supreme Court’s decision in Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 120 S.Ct. 195, 147 L.Ed.2d 13 (2000), may be that, if challenged, the debtor has the burden to establish entitlements to a claim of exemption under state law by the same standard that applies in the courts of that state. If so, then the objecting party does not properly bear the burden of proof.
The post-Raleigh view necessarily calls into question the validity of Rule 4003(c), which expressly allocates the burden of proof on claims of exemption: "the objecting party has the burden of proving that the exemptions are not properly claimed."
The basic problem is that Rule 4003(c) suffers from being a procedural rule that attempts to accomplish a substantive task, it being settled by Raleigh that a burden of proof in bankruptcy is substantive and generally is regarded as an essential element of a claim itself.
In re Davis, 323 B.R. 732, 741 (B.A.P. 9th Cir. 2005) (Judge Klein, concurring opinion).
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The excerpts from In re Greenfield and In re Davis reveal the operative legal question – is FED. R. BANKR. P. Rule 4003(c) invalid as a procedural rule which modifies substantive rights? Judge Klein, ten years after his concurrence in In re Davis, wrote a well-researched opinion in In re Tallerico supplementing his concurrence. Several courts, primarily in California, have agreed with his position. See, e.g., In re Diaz, 547 B.R. 329 (B.A.P. 9th Cir. 2016); In re Williams, 556 B.R. 456 (Bankr. C.D. Cal. 2016); In re Vaughn, 558 B.R. 897 (Bankr. D. Ala. 2016); In re Pashenee, 531 B.R. 834 (Bankr. E.D. Cal. 2015). Other courts have concluded that FED. R. BANKR. P. Rule 4003(c) is still valid despite Raleigh. See, e.g., In re Nicholson, 435 B.R. 622 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds); Matter of Hoffman, 605 B.R. 560 (Bankr. N.D. Ga. 2019); In re Weatherspoon, 605 B.R. 472 (Bankr. S.D. Ohio 2019). Many courts have offered extended analysis of the issue without arriving at a conclusion. See, e.g., In re Aubry, 558 B.R. 333 (Bankr. C.D. Cal. 2016) (Judge Kwan) (expressing skepticism that FRBP 4003(c) is invalid); In re Gilman, 544 B.R. 184 (Bankr. C.D. Cal. 2016) (Judge Kaufman) (stating that caselaw invalidating FRBP 4003(c) was "compelling," but acknowledging that "there is no binding authority that explicitly changes the burden allocation set forth in Carter or FRBP 4003(c)"); In re Thiem, 443 B.R. 832 (Bankr. D. Ariz. 2011) (noting dispute and presuming FRBP 4003(c) still valid for purposes of opinion). Most commonly, courts simply assume that FED. R. BANKR. P. Rule 4003(c) is still valid, possibly unaware of a split in caselaw on the issue. See, e.g., In re Hanson, 903 F.3d 793 (8th Cir. 2018); In re Nuara, 607 B.R. 116 (Bankr. E.D.N.Y. 2019); In re Haworth, 604 B.R 394 (Bankr. D.
Idaho 2019). Every Circuit Court, including the Ninth Circuit, that has addressed the burden of proof when an objection to a claimed exemption is filed, has continued to refer to FED. R. BANKR. P. Rule 4003(c) post-Raleigh. See, e.g., In re Lee, 889 F.3d 639 (9th Cir. 2018) ("Moreover, Rule 4003(c) provides that in any hearing under the rule, ‘the objecting party has the burden of proving that the exemptions are not properly claimed.’"); In re Hanson, 903 F.3d 793 (8th Cir. 2018) ("It is the trustee’s burden to demonstrate that a claimed exemption is improper."); In re Fehmel, 2010 WL 1287618 (5th Cir. 2010); In re Hodes, 402 F.3d 1005 (10th Cir. 2005) ("The objecting party bears the burden of proof on an objection to a claimed exemption.").
Judge Klein, in In re Tallerico, 532 B.R. 774 (Bankr. E.D. Cal. 2015), after an extended historical discussion, concluded that "Rule 4003(c) offends the Bankruptcy Rules Enabling Act with respect to state-law exemptions and must give way to the state statute." This conclusion, that FED. R. BANKR. P. Rule
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4003(c) constitutes an impermissible modification of substantive rights, carries significant logical appeal given its simplicity and given the plain language of 28 U.S.C. § 2072.
The Court, however, cannot escape certain countervailing considerations. First, in Raleigh, the Supreme Court quickly turned to the Federal Rules of Bankruptcy Procedure to determine whether a burden of proof was articulated. 530 U.S. 15 at 22, n.2 ("The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is ‘prima facie evidence of the validity and amount of the claim,’ this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance."). The Supreme Court, by writing "that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure," acknowledges that Congress may delegate its authority to set the burden of proof. Indeed, delegation of Congressional authority when an "intelligible principle" is articulated has long been a feature of the American government. See, e.g., Mistretta v. U.S., 488 U.S. 361, 372 (1989) ("Applying this ‘intelligble principle’ test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."). As Mistretta makes clear, the Supreme Court rarely interferes with the exercise of delegated legislative authority. Id. at 373 ("[W]e have upheld, again without deviation, Congress’ ability to delegate power under broad standards.").
This observation finds support in a Bankruptcy Appellate Panel decision from 2010:
As the Supreme Court has recognized, bankruptcy exemptions are authorized and regulated by Congress in § 522 of the Bankruptcy Code. Although state law may control the ‘nature and extent’ of state law exemptions, subject to the limitations set forth in the Bankruptcy Code,
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the manner in which such exemptions are to be claimed, set apart, and awarded, is regulated and determined by the federal courts, as a matter of procedure in the court of bankruptcy administration, as to which they are not bound or limited by state decisions or statutes. Because Congress has regulated the allowance of exemptions in bankruptcy, the Code and Rules may alter burdens of proof relating to exemptions, even if those burdens are part of the "substantive" rights under state law. In implementing the provisions of § 522(l), Rule 4003(c) places the burden of proof on the objecting party.
In re Nicholson, 435 B.R. 622, 633 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds). In support of the above excerpt, In re Nicholson cited the Supreme Court’s statement that "Congress of course may do what it likes with entitlements in bankruptcy," and the Advisory Committee Note to Rule 4003(c) which states that "This rule is derived from § 522(l) of the Code." Id.; see also 9 COLLIER’S ON BANKRUPTCY ¶ 4003.04 (16th ed. 2019) ("[T]he better- reasoned decisions recognize that the rule simply reflects the burden placed on an objector by section 522(l), a federal statute that overrides state law on this issue under the Supremacy Clause.").
While the Court does not conclude that the approach represented by In re Nicholson is the better-reasoned approach, for multiple reasons outlined below, the Court concludes that the presence of a legitimate argument that FED. R. BANKR. P. Rule 4003(c) is still valid forces this Court to continue applying the rule.
First, the Supreme Court drafts the Federal Rules of Bankruptcy Procedure. Raleigh was decided in 2000, so the Supreme Court has had nineteen years, during which time there have been many rule changes, to modify or eliminate FED. R. BANKR. P. Rule 4003(c). It has not done so. Additionally, the Supreme Court, in Raleigh, stated that the burden of proof has long been considered "substantive" --- citing pre-World War 2 cases in support of the proposition. Those cases long predate FED. R. BANKR. P. Rule 4003(c), yet the Supreme Court drafted the rule despite the presence of those cases. Given these observations and the ambiguity regarding the continuing validity of FED. R. BANKR. P. Rule 4003(c), this Court would be remiss to invalidate a binding rule
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of bankruptcy procedure on the basis that the Supreme Court violated its own caselaw. This is especially so when, to this Court’s knowledge, every Court of Appeal that has cited the burden of proof for an objection to a homestead exemption has continued to refer to FED. R. BANKR. P. Rule 4003(c) even after Raleigh.
Rather, this Court agrees with the analysis set forth in In re Weatherspoon, 605
B.R. 472, 482 (Bankr. S.D. Ohio 2019):
Although Raleigh was decided in the context of an objection to a proof of claim and did not involve Bankruptcy Rule 4003(c), some bankruptcy courts have questioned the continued viability of the rule in light of the Supreme Court’s holding in that case. These cases are well- reasoned, and Ohio courts place the burden of proof on the party claiming the exemption. Thus, it could be argued that here the Debtor should shoulder the burden of proving the exemption was properly claimed. But even if decisions such as Tallerico are correctly decided, it is not for this Court to determine that Raleigh overruled Zingale by implication; instead, it must follow Zingale until the Supreme Court or the Sixth Circuit overrules it.
If trial courts disregard binding precedent and binding legal provisions on the basis that they have been implicitly overruled, especially when there are legitimate arguments to the contrary, judicial hierarchy and the entire doctrine of legal precedent would be undermined.
Merits
Here, as stated by Trustee, CAL. CODE CIV. P. § 704.730(a)(3)(B) provides a
$175,000 homestead exemption for "[a] person physically or mentally disabled who as a result of that disability is unable to engage in substantial gainful employment." Regarding the preliminary requirement, whether her husband is
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disabled, Trustee states "Schedules I and J do not give any indication that Mr. Hammond was disabled as of the Petition Date. . . Debtor included unauthenticated documents and inadmissible hearsay testimony that Mr.
Hammond is disabled currently, but no evidence that suggests he was disabled on October 17, 2017." [Dkt. No. 49, pgs. 4-5]. This line of argument is insufficient given that the Court has concluded it should assign Trustee the burden of proof.
Trustee’s primarily focuses on the second requirement – whether Mr. Hammond’s disability renders him unable to engage in substantial gainful employment. Citing In re Gilman, 544 B.R. 184, 199 (Bankr. C.D. Cal. 2016), Trustee argues the following:
The Gilman court disallowed the enhanced disability exemption because even though the debtor had established she was disabled, the court found she earned or had the capcity to earn at least $1,000 per month. Similarly, this Court can assess whether, on the Petition Date, Mr. Hammond had the ability to earn at least $1,170 per month.
Schedule I reflects a gross income of $1,000 per month for Mr. Hammond, but the only evidence in support of this figure is Schedule I. It is very possible that he was or could have been earning at least $170 more per month. Also, there is reference in the hearsay testimony attached to the Turnover Opposition that Mr. Hammond is or was pursuing further education, which would presumably increase his earning capacity.
[Dkt. No. 49, pg. 6]. As pointed out in the opposition, this argument falls short of meeting Trustee’s burden of proof.
Nevertheless, Trustee’s argument raises a legitimate question regarding Debtor’s eligibility to claim the enhanced homestead exemption under CAL. CODE CIV. P. § 704.730(a)(3)(B). Specifically, the Court notes that Mr. Hammond’s income is close to the threshold used in In re Gilman to determine substantial gainful activity, and it appears Mr. Hammond may have
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been enrolled in educational courses that may have caused a temporary reduction in earning potential unrelated to his disability.
The Court is inclined to set an evidentiary hearing to determine whether Mr. Hammond had the capacity to engage in substantial gainful employment as of the petition date.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
11:00 AM
MOVANT: MUMTAZ SAJJAD
EH
Docket 12
Service: Improper Opposition: None
Judge Houle’s self-calendaring procedures, as well as this Court’s order on application shortening time, entered as docket number 14, require that secured creditors be served pursuant to FED. R. BANKR. P. Rule 7004. It appearing that the senior lienholders, Michael W. Douglas and Cindy Douglas, were not served pursuant to Rule 7004, and that secured creditor Val-Chris Investments was not named in the caption of the motion or in § 3 of the motion, the Court is inclined to DENY the motion. In addition, on the merits the motion lacks sufficient evidentiary detail to rebut the presumption that the case was not filed in good faith.
APPEARANCES REQUIRED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Mumtaz Sajjad Represented By Michael R Perry
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 8
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
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applicable; and
(emphasis added). Here, Debtor’s statement of intention does not address the subject collateral. The deadline for filing or amending the statement of intention having passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Melissa Rosalyn Aguayo Represented By Daniel King
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: JESUS AND MARYLOU MOYA
EH
Docket 24
Service: Improper Opposition: None
Parties to apprise the Court of the status of arrears, if any, and the status of the insurance policy.
APPEARANCES REQUIRED.
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Movant(s):
Courtesy NEF Represented By Mark A Mellor
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LOS ANGELES FEDERAL CREDIT UNION
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
David Oliver Hazward Represented By Kevin Tang
Joint Debtor(s):
Vennecia Ressie Marie Hazward Represented By
Kevin Tang
11:00 AM
Movant(s):
Los Angeles Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 25
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Hernan Pizzulin Represented By Tom A Moore
Joint Debtor(s):
Tonya Thomas Represented By Tom A Moore
Movant(s):
Bank of America, N.A. Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 36
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
James Olin Gardner Represented By Marcus Gomez
Joint Debtor(s):
Karen Rose Gardner Represented By Marcus Gomez
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney Mark S Krause
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 34
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT relief from 11 U.S.C. § 1301(a) co-debtor 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Charles Sanchez Represented By Neil R Hedtke
Movant(s):
Wilmington Savings Fund Society, Represented By
Sean C Ferry
11:00 AM
Trustee(s):
Erin M McCartney
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
EH
Docket 52
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Denise Cherie Darden Represented By Paul Y Lee
Movant(s):
Wilmington Trust, National Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BAYVIEW LOAN SERVICING LLC
EH
Docket 43
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on February 27, 2018, less than one year before the instant case was filed. Debtor not having filed a motion to continue the automatic stay, the automatic stay expired on September 12, 2019.
Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Anna Marie Montgomery Represented By Julie J Villalobos
Movant(s):
Bayview Loan Servicing, LLC Represented By
Dane W Exnowski Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
Docket 91
- NONE LISTED -
Debtor(s):
Cheryl Linda Fernandez Represented By Matthew D. Resnik
Movant(s):
WELLS FARGO BANK, Represented By Kelsey X Luu Gilbert R Yabes Jacky Wang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 4/28/20 EH
Docket 53
Service: Proper Opposition: Late
Parties to apprise Court of status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Lewis Halfbreed Morris Represented By David Lozano
Joint Debtor(s):
Debra Denise Morris Represented By David Lozano
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
11:00 AM
Trustee(s):
Angie M Marth Jacky Wang
Rod Danielson (TR) Pro Se
2:00 PM
From: 12/10/19, 2/11/20 EH
Docket 8
- NONE LISTED -
Debtor(s):
Enrique Garcia Represented By Michael R Totaro
Joint Debtor(s):
Flavia C Garcia Represented By Michael R Totaro
2:00 PM
Also #14 EH
Docket 128
On August 27, 2019, Jauregui Trucking, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On October 7, 2019, Debtor filed a notice of bar date that provided for a deadline of February 24, 2020 for claims of governmental units.
On January 9, 2020, the Employment Development Department (the "EDD") filed a proof of claim for a claim in the amount $253,545.74, with $226,229.03 identified as entitled to priority ("Claim 9"). On March 31, 2020, Debtor filed an objection to Claim 9, arguing that the EDD had improperly classified a number of Debtor’s drivers as employees. On April 15, 2020, the Court approved the parties’ stipulation to continue the hearing on the claim objection to May 26, 2020; the Court notes that the original hearing was not properly noticed pursuant to FED. R. BANKR. P. Rule 3007(a) (1). On May 11, 2020, the EDD filed its opposition. On May 19, 2020, Debtor filed its reply.
2:00 PM
Debtor argues that "almost all of them [the drivers listed on the EDD’s Notice of Assessment] are owner-operators and not Debtor’s employees." Debtor contends that "[t]he EDD failed to conduct any investigation to determine which drivers were Debtor’s employees and which were owner-operators and thus independent contractors." The Court notes that Debtor had petitioned the EDD’s notice of assessment, and that it appears that an evidentiary hearing was pending at the time Debtor filed bankruptcy but has since been stayed.
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). Tax claims, not having been based on a writing, are entitled to presumptive validity when properly filed. See In re Los Angeles Int’l Airport Assocs., 106 F.3d 1479, 1480 (9th Cir. 1997). 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
2:00 PM
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)).
Typically, when 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). Contrary to the argument raised in Debtor’s reply, in the context of a tax claim, however, the burden of proof is assigned by the underlying substantive law. See Raleigh v. Ill. Dep’t of Revenue, 530
U.S. 15, 26 (2000). In this case, that means the burden of proof is assigned to Debtor.
Debtor has provided evidence supporting its contention that thirteen different individuals, listed in pages 4-5 of the reply filed as docket number 152, are not properly characterized as employees. As noted by Debtor in the reply, the question of whether truck drivers are employees or independent contractors is currently the subject of litigation in California. Without concluding that Debtor has provided the correct legal standard, the Court does not have the information necessary to apply the Borello test or the ABC test1, outlined in page 6 of Debtor’s reply.
Nevertheless, the Court does conclude that Debtor has provided sufficient evidence to overcome the presumptive validity of the EDD claim and warrant the setting of an evidentiary hearing pursuant to Local Rule 3007-1(b)(5). Specifically, the Court concludes that the evidence submitted by Debtor is sufficient to raise a genuine question regarding whether the individuals identified are properly characterized as employees given the holistic nature of the Borello test and the evidence submitted by
2:00 PM
the EDD.
As Debtor presented its evidence on the merits in its reply, the Court is inclined to either allow supplemental briefing by the EDD or set an evidentiary hearing pursuant to Local Rule 3007-1(b)(5).
APPEARANCES REQUIRED.
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From: 9/4/19, 10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20, 3/24/20, 4/21/20
Also #13 EH
Docket 9
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From: 3/31/20, 4/21/20 EH
Docket 64
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
11:00 AM
Docket 23
Opposition: None Service: 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’s Fees: $812.35
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):
Gustavo Adolfo Miranda Represented By Edgar P Lombera
Joint Debtor(s):
Maria Isabel Miranda Represented By Edgar P Lombera
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
Docket 212
- NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Movant(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
2:00 PM
Adv#: 6:20-01032 Whitmore v. Tsirtsis et al
S. Whitmore against James Dimitri Tsirtsis, Pota N. Tsirtsis, Christos Minoudis, Maria Minoudis, Angelo D. Tsirtsis. (Charge To Estate $350.00). Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(13 (Recovery of money/property - 548 fraudulent transfer)) (Marchisotto, Michelle)
EH
Docket 1
- NONE LISTED -
Debtor(s):
James Dimitri Tsirtsis Represented By Jonathan R Preston
Defendant(s):
James Dimitri Tsirtsis Pro Se
Pota N. Tsirtsis Pro Se
Christos Minoudis Pro Se
Maria Minoudis Pro Se
Angelo D. Tsirtsis Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By
Michelle A Marchisotto
Trustee(s):
Robert Whitmore (TR) Represented By
2:00 PM
Michelle A Marchisotto
2:00 PM
Adv#: 6:19-01163 O'Neil et al v. Perez et al
From: 1/29/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
Plaintiff(s):
Al Karlson Represented By
Edmond Richard McGuire
2:00 PM
Dixie Karlson Represented By
Edmond Richard McGuire
Michael O'Neil Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:19-01131 Anderson v. Marroquin, Jr.
(2) Avoidance and Recovery of Intentional Fraudulent Transfers; (3) Avoidance and Recovery of Property of the Bankruptcy Estate; and (4) Temporary Restraining Order and Preliminary Injunction Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) (Eastmond, Thomas)
From: 12/4/19 EH
Docket 1
- NONE LISTED -
Debtor(s):
Maria Fabiola Marroquin Represented By Mark A Mellor
Defendant(s):
Roderico Marroquin Jr. Represented By Alec L Harshey
Plaintiff(s):
Karl T. Anderson Represented By Thomas J Eastmond Robert P Goe
Rafael R Garcia-Salgado
2:00 PM
Trustee(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:18-01174 Pringle Ch 7 Trustee v. Shenouda et al
From: 10/31/18, 2/27/19, 6/12/19, 9/18/19, 11/20/19, 4/1/20
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
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
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#: 6:18-01222 Anderson, Chapter 7 Trustee v. Bobby Lee Associates, LLC
From: 1/16/19, 4/17/19, 6/12/19, 9/18/19, 10/2/19, 12/11/19, 3/25/20, 4/1/20, 5/13/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Bobby Lee Associates, LLC Represented By Keith S Knochel
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:18-01227 Anderson, Chapter 7 Trustee v. Wang et al
From: 9/18/19, 12/11/19, 3/25/20, 4/1/20, 5/13/20
EH
Docket 13
- NONE LISTED -
Debtor(s):
Eastern Legends CW Represented By Lawrence B Yang
Defendant(s):
Ming Chung Wang Pro Se
LiLi Chang Represented By
Lawrence B Yang
JWLC Imports, Inc. Pro Se
2:00 PM
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Thomas J Polis
Trustee(s):
Karl T Anderson (TR) Represented By Thomas J Polis
2:00 PM
Adv#: 6:19-01122 Whitmore v. Labor Commissioner of the State of California
From: 11/6/19, 1/15/20, 3/25/20, 4/1/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Labor Commissioner of the State of Represented By
Melvin Yee
Plaintiff(s):
Robert S. Whitmore Represented By Caroline Djang
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19, 1/29/20
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
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, 10/31/18, 7/31/19, 9/11/19, 11/20/19, 1/29/20
EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
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
Trustee(s):
Helen R. Frazer (TR) Represented By 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, 1/31/18, 4/25/18, 2/27/18, 6/12/19, 1/29/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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
2:00 PM
Arjun Sivakumar Carmela Pagay Franklin R Fraley Jr
2:00 PM
Adv#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19, 1/29/20
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):
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#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19, 1/29/20
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):
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):
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
Docket 277
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 105
- NONE LISTED -
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
Docket 38
- NONE LISTED -
Debtor(s):
Malalage Malalasekera Represented By Kevin Tang Michael Smith
Movant(s):
Malalage Malalasekera Represented By Kevin Tang Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 17
- NONE LISTED -
Debtor(s):
Mary Joy Ebreo Balisi Represented By Dana Travis
Movant(s):
Mary Joy Ebreo Balisi Represented By Dana Travis Dana Travis Dana Travis Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 25
- NONE LISTED -
Debtor(s):
Patrick E. Berry Represented By Terrence Fantauzzi
Joint Debtor(s):
Michelle L. Brown Berry Represented By Terrence Fantauzzi
Movant(s):
Patrick E. Berry Represented By Terrence Fantauzzi Terrence Fantauzzi
Michelle L. Brown Berry Represented By Terrence Fantauzzi Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 40
- NONE LISTED -
Debtor(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Movant(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Rebecca Andrade-Friloux Represented By Tina H Trinh Tina H Trinh Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/7/19, 12/19/19, 2/20/20, 4/16/20
Also #8 & #9 EH
Docket 52
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20
Also #7 & #9 EH
Docket 44
On April 15, 2019, Mark & Elizabeth Swartz ("Debtors") filed a Chapter 13 voluntary petition. On June 21, 2019, The Bank of New York Mellon f/k/a The Bank of New York as successor Indenture trustee to JPMorgan Chase Bank, National Association for CWHEQ Revolving Home Equity Loan Trust, Series 2006-F ("Creditor") filed a proof of claim for a secured claim in the amount of $157,959.06 ("Claim 5").
On July 10, 2019, Debtors filed an objection to Claim 5. Debtors argued that the information filed in support of Claim 5 is inadequate pursuant to the Federal Rules of Bankruptcy Procedure, and that, as a result, Creditor has failed to meet its burden of proof. At the hearing of August 22, 2019, the Court noted that there appeared to be an error on the proof of service which resulted in Creditor’s notice address being misstated. For that reason, the Court continued the matter for proper service.
11:00 AM
On August 30, 2019, Debtors filed a renewed objection to Claim 5. The Court notes that notice and service are now proper.
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
11:00 AM
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 because such claim is contingent or unmatured;
FED. R. BANKR. P. Rule 3001(c)(2) identifies certain required information that a claimant must attach to a proof of claim in order for the claim to be afforded prima facie validity. In particular, the Court notes that Rule 3001(c)(2)(A) and (C) provide requirements related to the itemization of non-principal amounts and escrow amounts, respectively.
The Court finds Debtors’ assertion that the supporting information is inadequate to be well-founded. The mortgage proof of claim attachment includes the following information. Part 2 identifies a principal balance of $98,982.98, interest due of
$55,486.25, and fees and costs of $3,489.83. Part 3 identifies a pre-petition arrears of
$87,692.60, of which $84,202.77 was principal and $3,489.83 was the aforementioned costs. And Part 4 asserts that the month payment includes $607.39 for principal and interest and $549.90 for escrow.
11:00 AM
The two figures which do not appear to be justified in the supporting documentation are the $55,486.25 in interest and the $549.90 monthly payment for escrow. The Court notes that the loan payment history spreadsheet provided by Creditor does not contain any itemization for interest or escrow, and, furthermore, the entire column relating to accrued interest balance and accrued escrow balance is zeroed out.
Because Creditor has failed to separate principal, interest, and escrow, as directed by FED. R. BANKR. P. Rule 3001(c)(2), and, noting that Debtors have declared that there is no escrow account relating to the second mortgage, the Court is unable to determine the validity or amount of the prepetition default identified in column G of the loan payment history. The Court has also not been provided with any itemization or calculation of the interest amount, alleged to be $55,486.25.
As a result, the Court is inclined to reduce Claim 5 to $102,472.81, representing the principal balance and fees and costs due in part 2 of the loan payment history, with a prepetition arrearage amount of $0.
APPEARANCES REQUIRED.
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
11:00 AM
Movant(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Elizabeth M Swartz Represented By Joseph A Weber Joseph A Weber Fritz J Firman Fritz J Firman
PYOD LLC Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/11/19, 8/22/19, 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20
Also #7 & #8 EH
Docket 15
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #11 EH
Docket 24
- NONE LISTED -
Debtor(s):
Paul Salgado Represented By
Jenny L Doling
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling
Movant(s):
Paul Salgado Represented By
Jenny L Doling
Paula Salgado Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 EH
Docket 0
- NONE LISTED -
Debtor(s):
Paul Salgado Represented By
Jenny L Doling
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Erendira Belen Gonzalez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Miguel A. Ruelas Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Yizel I. Ruelas Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramiro Delgado Flores II Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Amayda Vanessa Palomares Represented By
Timothy L McCandless
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROBERT JOSEPH SLAPP, III
From: 4/14/20, 4/28/20, 5/19/20 Also #17.1
EH
Docket 15
Service: Proper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I)-(II) because Debtor had (a) three bankruptcy cases dismissed in the previous year; and (b) had a case dismissed for failure to file requirement documents. Section 362(c)(4)
(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely implies that Debtor has a higher paying job now, without any detail describing the change in Debtor’s financial circumstances. As a result, the Court is inclined to CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
Movant(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #17 EH
Docket 0
- NONE LISTED -
Debtor(s):
Robert Joseph Slapp III Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jon Thomas Smith Represented By Dana Travis
Joint Debtor(s):
Tamara Dawn Smith Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Domingo Ramirez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Rocio Ramirez Represented By Jaime A Cuevas Jr.
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Early Earl Nelms Sr. Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Humberto Picciotti Represented By Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Lisa Tompkins Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 133
- 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
11:01 AM
Docket 81
- NONE LISTED -
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- 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
11:01 AM
Docket 81
- NONE LISTED -
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 75
- NONE LISTED -
Debtor(s):
Rachel Ann Sullivan Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 76
- NONE LISTED -
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Jose Diaz Represented By
Nima S Vokshori
Joint Debtor(s):
Betty Diaz Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- NONE LISTED -
Debtor(s):
Xavier C. Luna Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Salem Eid Massoud Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Donald Ray Levier Jr. Represented By
D Justin Harelik
Joint Debtor(s):
Antoinette Marie Levier Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 33
- NONE LISTED -
Debtor(s):
Jose Manuel Urena-Hernandez Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Veronica Galvez 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):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Grace Gonzales Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Judy May Wells Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Margarito Horta Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Brian Erik May Represented By Sundee M Teeple
Joint Debtor(s):
Lizabeth Marie Smith Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- NONE LISTED -
Debtor(s):
Lakendra Johnson Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 22
- NONE LISTED -
Debtor(s):
Delbert S. May Represented By Gregory Ashcraft
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:01 AM
Docket 50
- NONE LISTED -
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
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
- NONE LISTED -
Debtor(s):
John David Kraus Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Maria Aurora Chaidez Grajeda Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 4/21/20, 4/30/20 EH
Docket 74
Service: Proper Opposition: None
Parties to update Court on status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Movant(s):
U.S BANK NATIONAL Represented By Sean C Ferry Theron S Covey
2:00 PM
Trustee(s):
Eric P Enciso
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Dana Edward Pettus Represented By
Raj T Wadhwani
Joint Debtor(s):
Andrea Lynn Doster Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Susan F Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Russell P Eves Represented By Daniel C Sever
Joint Debtor(s):
Lupita Eves Represented By
Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Nambi Chandrakasan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria Toscano Lawes Represented By William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Anthony Percell Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mary Joy Ebreo Balisi Represented By Dana Travis
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
Docket 22
- NONE LISTED -
Debtor(s):
Jon Thomas Smith Represented By Dana Travis
Joint Debtor(s):
Tamara Dawn Smith Represented By Dana Travis
Movant(s):
Jon Thomas Smith Represented By Dana Travis Dana Travis
Tamara Dawn Smith Represented By Dana Travis Dana Travis Dana Travis Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 14
On April 13, 2020, Jimmie Moore ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2017 Kia Sportage (the "Property"). Pursuant to Claim 7 First Investors Servicing Corporation ("Creditor") holds a secured claim against the Property. Claim 7 identifies the total claim and the secured value of Claim 7 as $23,120.33.
On May 12, 2020, Debtor filed a motion to value the Property. Debtor asserts that the Property should be valued at $13,452. The Court also notes that the motion to value was filed before Creditor filed Claim 7, and the motion to value lists a total claim amount of $25,362.
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
11:00 AM
In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
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 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 identifying the "trade-in value" retail value of the Property. The Court cannot conclude that the Kelly Blue Book report provided is sufficient to allow the Court to determine the Property’s "retail value."
Tentative Ruling:
The Court is inclined to DENY the motion or CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jimmie Moore II Represented By Nancy Korompis
Movant(s):
Jimmie Moore II Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Pro Se
Movant(s):
Walter Hunter Jr Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 19
- NONE LISTED -
Debtor(s):
Thomas Anthony Aguna Sr. Represented By Dana Travis
Joint Debtor(s):
Sandra Leane Aguna Represented By Dana Travis
Movant(s):
Thomas Anthony Aguna Sr. Represented By Dana Travis Dana Travis
Sandra Leane Aguna Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/14/20 Also #19 & #20 EH
Docket 271
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #18 & #20 EH
Docket 285
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #18 & #19 EH
Docket 277
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 49
- NONE LISTED -
Debtor(s):
Jorge Ramirez Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Evelia Ramirez Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 153
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil
11:00 AM
Trustee(s):
Gilbert R Yabes
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 4/14/20 EH
Docket 50
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alfredo Pena Represented By
Dana Travis Milton Williams
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Kirsten Martinez
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA, N.A.
From: 4/28/20 EH
Docket 104
Service: Proper Opposition: None
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on April 27, 2018, less than one year before the instant case was filed. Debtor not having calendared a motion to continue the automatic stay, the automatic stay expired on April 3, 2019. Therefore,
11:00 AM
the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Heather Ann Pessoa Bond Represented By Matthew D. Resnik
Movant(s):
HSBC BANK USA, N.A. Represented By Eric P Enciso Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAB WEST LLC
EH
Docket 56
Service: Proper Opposition: None
The Court is inclined to:
GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
GRANT waiver of Rule 4001(a)(3) stay
GRANT requests under ¶¶ 2 and 8
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 Norman Lauzon Represented By Dana Travis
Joint Debtor(s):
Pamela Ann Lauzon Represented By Dana Travis
11:00 AM
Movant(s):
Cab West, LLC Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: USB LEASING LT
EH
Docket 30
Service: Proper Opposition: None
11 U.S.C. § 365(p) provides:
If a lease of personal property is rejected or not timely assumed by the trustee under subsection (d), the leased property is no longer property of the estate and the stay under section 362(a) is automatically terminated.
11 U.S.C. § 365(d) provides:
In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected.
Here, the Trustee did not reject or timely assume the lease of the
11:00 AM
personal property at issue. As such, the leased property is no longer property of the estate and the automatic stay has been terminated as a matter of law pursuant to 11 U.S.C. § 365(p). Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Bryan Lee Tendal Duke Represented By
H. Christopher Heritage
Joint Debtor(s):
Gary Thomas Hackett Represented By
H. Christopher Heritage
Movant(s):
USB Leasing LT Represented By Robert P Zahradka
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 38
- NONE LISTED -
Debtor(s):
Larry D Sanders Represented By Paul Y Lee
Joint Debtor(s):
Veronica D Sanders Represented By Paul Y Lee
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JESUS AND MARYLOU MOYA
From: 5/26/20 EH
Docket 24
Service: Improper Opposition: None
Parties to apprise the Court of the status of arrears, if any, and the status of the insurance policy.
APPEARANCES REQUIRED.
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Movant(s):
Jesus Moya Represented By
Mark A Mellor
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
Docket 34
Service is Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and § 362(d)(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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Movant(s):
U.S. Bank Trust National Represented By
Erin M McCartney
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 13
Service: Proper Opposition: None
The court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-DENY request for relief pursuant to 11 U.S.C. § 362(d)(2) for failure to properly assert grounds on page 4 of motion.
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT request for relief under ¶ 2.
APPEARANCES REQUIRED.
Debtor(s):
John A Hermosillo Jr. Represented By Raymond Perez
11:00 AM
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 13
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. §§ 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):
Demitrios Foster Represented By Chris A Mullen
Joint Debtor(s):
Natesha Eileen Ellis Represented By Chris A Mullen
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: MARGARITO MARTINEZ
EH
Docket 10
Service: Proper Opposition: None
Debtor to explain the source of the $10,000 plan step-up payment in month 13. Also, the Court notes that Counsel’s reasons for not opposing the motion to dismiss – lack of internet and miscalendaring the filing – appear inconsistent.
APPEARANCES REQUIRED.
Debtor(s):
Margarito Martinez Represented By Michael Smith
Movant(s):
Margarito Martinez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JOSEPH HERNANDEZ
EH
Docket 10
Service: Improper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I) because Debtor had two bankruptcy cases dismissed in the previous year. Section 362(c)(4)(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." As to the 2018 case, Debtor intended to prove that there was a change in his personal situation pursuant to 11 U.S.C. § 362(c)(4)(D) (i)(III). Nevertheless, Debtor failed to provide any evidence relevant to prove his expenses as he alleged that he did not save receipts and bank statements in his declaration. The Court notes Debtor can contact the hotel and request copies of receipts. As to the 2019 case, Debtor did not provide any information whatsoever regarding how much his income was reduced or how much money he earned when he was employed at Pepsi and Amazon after he was terminated from Food For Less. In addition, the evidence submitted to the Court merely show that his situation was improved partly because he was receiving the unemployment benefits which is a temporary benefit, nor is there evidence of reconciliation between Debtor and his wife. Last, the proof of service is dated October 2020. Therefore, the Court is inclined to DENY the request to impose the stay as to all creditors.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Joseph R. Hernandez Represented By Michael Smith
Movant(s):
Joseph R. Hernandez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
Docket 94
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Daniel Angel Ramirez Represented By
Glenn Ward Calsada
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Martha Valencia Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Nancy Luella Dobson Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Amanda Bautz Represented By Terrence Fantauzzi
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Ivette Aracely Galdamez Represented By Frank J Alvarado
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Trevin Neil Island Represented By Daniel King
Joint Debtor(s):
Sekiena N Wynn Represented By Daniel King
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Docket 217
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: $ 87,561.68
Trustee Expenses: $ 1,690.97
Attorney Fees: $ 7,886.50
Attorney Costs: $ 714.85
The Court notes that the accountant fees and costs appear excessive. The Court is inclined to CONTINUE the matter for the accountant to provide supplemental evidence, including the original and amended 2017 and 2018 tax returns, the 2019 tax returns, the prompt determination letters, and any other analyses prepared by acountant that the Court should consider, in support of the requested fees.
APPEARANCES WAIVED EXCEPT AS TO ACCOUNTANT. 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):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
Docket 34
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: $ 3,150 Trustee Expenses: $ 298.12
Franchise Tax Board: $1,748.42 Court Charges: $300.00
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):
Trending Up Represented By
Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
#9.00 Application to Employ Weiland Golden Goodrich LLP as Attorneys to Chapter 7
EH
Docket 177
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Kayla Snyder Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Juan R. Garcia Represented By Keith Q Nguyen
Joint Debtor(s):
Lorena I. Garcia Represented By Keith Q Nguyen
Movant(s):
Juan R. Garcia Represented By Keith Q Nguyen Keith Q Nguyen Keith Q Nguyen
Lorena I. Garcia Represented By Keith Q Nguyen Keith Q Nguyen
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 18
On April 2, 2020, Hector & Ruth Meza ("Debtors") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 16602 Colonial Dr., Fontana, CA 92336 (the "Property").
On May 5, 2020, Trustee filed a no-asset report. The next day, Trustee filed an objection to Debtor’s claimed homestead exemption. Trustee argues that Debtor has not established that she is entitled to claim the increased homestead exemption set forth in CAL. CODE CIV. P. § 704.730(a)(3)(B).
Burden of Proof
The initial burden is on the objecting party:
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As the Supreme Court has recognized, bankruptcy exemptions are authorized and regulated by Congress in § 522 of the Bankruptcy Code. Although state law may control the ‘nature and extent’ of state law exemptions, subject to the limitations set forth in the Bankruptcy Code, the manner in which such exemptions are to be claimed, set apart, and awarded, is regulated and determined by the federal courts, as a matter of procedure in the court of bankruptcy administration, as to which they are not bound or limited by state decisions or statutes. Because Congress has regulated the allowance of exemptions in bankruptcy, the Code and Rules may alter burdens of proof relating to exemptions, even if those burdens are part of the "substantive" rights under state law. In implementing the provisions of § 522(l), Rule 4003(c) places the burden of proof on the objecting party.
In re Nicholson, 435 B.R. 622, 633 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds). In support of the above excerpt, In re Nicholson cited the Supreme Court’s statement that "Congress of course may do what it likes with entitlements in bankruptcy," and the Advisory Committee Note to Rule 4003(c) which states that "This rule is derived from § 522(l) of the Code." Id.; see also 9 COLLIER’S ON BANKRUPTCY ¶ 4003.04 (16th ed. 2019) ("[T]he better-reasoned decisions recognize that the rule simply reflects the burden placed on an objector by section 522(l), a federal statute that overrides state law on this issue under the Supremacy Clause.").
As outlined below, the Court concludes that the presence of a legitimate argument that FED. R. BANKR. P. Rule 4003(c) is still valid forces this Court to continue applying the rule.
The Supreme Court drafts the Federal Rules of Bankruptcy Procedure. Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15 (2000) was decided in 2000, so the Supreme Court has had nineteen years, during which time there have been many rule changes, to modify or eliminate FED. R. BANKR. P. Rule 4003(c). It has not done so. Additionally, the Supreme Court, in Raleigh, stated that the burden of proof has long been considered "substantive" --- citing pre-World War 2 cases in support of the proposition. Those
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cases long predate FED. R. BANKR. P. Rule 4003(c), yet the Supreme Court drafted the rule despite the presence of those cases. Given these observations and the ambiguity regarding the continuing validity of FED. R. BANKR. P. Rule 4003(c), this Court would be remiss to invalidate a binding rule of bankruptcy procedure on the basis that the Supreme Court violated its own caselaw. This is especially so when, to this Court’s knowledge, every Court of Appeal that has cited the burden of proof for an objection to a homestead exemption has continued to refer to FED. R. BANKR. P. Rule 4003(c) even after Raleigh.
Further, this Court agrees with the analysis set forth in In re Weatherspoon, 605 B.R. 472, 482 (Bankr. S.D. Ohio 2019):
Although Raleigh was decided in the context of an objection to a proof of claim and did not involve Bankruptcy Rule 4003(c), some bankruptcy courts have questioned the continued viability of the rule in light of the Supreme Court’s holding in that case. These cases are well- reasoned, and Ohio courts place the burden of proof on the party claiming the exemption. Thus, it could be argued that here the Debtor should shoulder the burden of proving the exemption was properly claimed. But even if decisions such as Tallerico are correctly decided, it is not for this Court to determine that Raleigh overruled Zingale by implication; instead, it must follow Zingale until the Supreme Court or the Sixth Circuit overrules it.
If trial courts disregard binding precedent and binding legal provisions on the basis that they have been implicitly overruled, especially when there are legitimate arguments to the contrary, judicial hierarchy and the entire doctrine of legal precedent would be undermined.
Merits
Here, as stated by Trustee, CAL. CODE CIV. P. § 704.730(a)(3)(B) provides a
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$175,000 homestead exemption for "[a] person physically or mentally disabled who as a result of that disability is unable to engage in substantial gainful employment."
Here, Trustee has submitted no meaningful evidence in support of his objection to Debtors’ claimed homestead exemption.
Additionally, there is no authority presented for the proposition that the disability has to be permanent. And last, Trustee is incorrect that Debtors are receiving unemployment benefits – Schedule I does not list any.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Hector Meza Represented By
Steven M Gluck
Joint Debtor(s):
Ruth Meza Represented By
Steven M Gluck
Movant(s):
Larry D Simons (TR) Pro Se
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 18
On February 13, 2020, Walter & Caryol Smith ("Debtors") filed a Chapter 7 voluntary petition. The meeting of creditors was originally set for March 17, 2020. The meeting of creditors has been continued on three occasions.
On May 18, 2020, UST filed a motion for extension of time to file a complaint objecting to discharge or a motion to dismiss the case. The basis for UST’s motion is that Debtors have not yet provided UST with bank statements for covering the period of 2017-2018. On June 2, 2020, Debtors submitted a notice of non-opposition to UST’s motion.
FED. R. BANKR. P. Rule 1017(e)(1) states:
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Except as otherwise provided in § 704(b)(2), a motion to dismiss a case for abuse under § 707(b) or (c) may be filed only within 60 days after the first date set for the meeting of creditors under § 341(a), unless, on request filed before the time has expired, the court for cause extends the time for filing the motion to dismiss.
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 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
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
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.
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Here, Debtors’ delay in providing the requested information constitutes sufficient cause to extend the deadlines. 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, Debtors have explicitly consented to the relief requested.
The Court is inclined to GRANT the motion, extending the deadlines to file a motion to dismiss the case and a complaint objecting to discharge until July 17, 2020.
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):
Walter Thompson Smith Jr. Represented By David R Hagen
Joint Debtor(s):
Caryol Ann Smith Represented By David R Hagen
Movant(s):
United States Trustee (RS) Represented By Everett L Green
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 20
On February 13, 2020, Christopher Shanklin ("Debtor") filed a Chapter 7 voluntary petition. Schedules I identified monthly gross wages of $9,890, total monthly payroll deductions of $2,530, and monthly net income of $7,360. Schedule J identified monthly expenses of $7,521, leaving monthly disposable income of -$161. Debtor also filed the Chapter 7 Statement of Your Current Monthly Income, which identified
$9,890 in gross wages, and conceded that that amount represented an above average monthly income for Debtor’s family size and state of residence. The second part of the Chapter 7 Statement of Your Current Monthly Income identifies deductions pursuant to the IRS guidelines totaling $6,592, additional expense deductions totaling $210, and ongoing debt payments totaling $3,532.33, resulting in the presumption of abuse being rebutted in this case.
On May 15, 2020, UST filed a motion to dismiss case for abuse pursuant to 11 U.S.C.
§ 707(b)(1) and (3). UST argues that Debtor has understated his income and inflated his expenses and that, under the totality of the circumstances, Debtor has the means to repay his creditors.
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11 U.S.C. § 707(b)(1) states, in pertinent part, that:
After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter.
11 U.S.C. § 707(b)(3) provides:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provision 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; or
the totality of the circumstances (including whether the debtor seeks to reject a personal services contract and the financial need for such rejection as sought by the debtor) of the debtor’s financial situation demonstrates abuse
UST asserts that Debtor has understated his income by approximately $264.33/month, overstated his payroll deductions by $207.22/month, resulting in a net change in disposable income of $471.55/month. This change would result, pursuant to the
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figures listed on Schedule I and J, in Debtor having net disposable income of
$310.55/month. Additionally, UST contests Debtor’s identified expenses for utilities and vehicle operations. Specifically, UST notes that Debtor’s utility expense, which includes $517/month for telephone services, exceeds the IRS guidelines by
$441/month. Additionally, UST notes that Debtor has identified $727/month for operation and insurance of one vehicle, which exceeds IRS guidelines by $454/month. Adjustment of these two expenses would result in further increased monthly disposable income in the amount of $895/month. The Court also notes that, pursuant to UST’s Exhibit 4, it appears that Debtor has inflated his monthly vehicle payment by
$95.33.
As noted by UST, the Ninth Circuit has outlined a list of non-exclusive factors for the Court to consider when presented with a motion to dismiss a Chapter 7 case for abuse under the totality of circumstances test:
Whether the 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 the debtor’s petition was filed as a consequence of illness, disability, unemployment, or some other calamity;
Whether the schedules suggest the debtor obtain cash advancements and consumer goods on credit exceeding his or her ability to repay them;
Whether the debtor’s proposed family budget is excessive or extravagant;
Whether the debtor’s statement of income and expenses is misrepresentative of the debtor’s financial condition; and
Whether the debtor has engaged in eve-of-bankruptcy purchases.
In re Price, 353 F.3d 1135, 1140 (9th Cir. 2004). The Ninth Circuit additionally stated: "[t]he primary factor defining substantial abuse is the
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debtor’s ability to pay his debts as determined by the ability to fund a Chapter 13 plan. Thus, we have concluded that a "debtor’s ability to pay his debts will, standing alone, justify a section 707(b) dismissal." Id.
Here, not only does the uncontroverted evidence suggest that Debtor can make meaningful payments toward his unsecured creditors which would enable to repay all debt within one year, but the schedules filed by Debtor appear to include material inaccuracies, while also reflecting generally high expenses and an adult child living at home. Therefore, the Court concludes that UST has established that the first, second, fourth, and fifth factors outlined in Price are applicable here and that Debtor has the ability to fund a Chapter 13 plan which would pay his unsecured creditors in full.
Additionally, the Court notes that Debtor has failed to oppose the motion, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion, DISMISSING the case for abuse.
APPEARANCES REQUIRED.
Debtor(s):
Christopher Michael Shanklin Represented By Neil R Hedtke
Movant(s):
United States Trustee (RS) Represented By
11:00 AM
Trustee(s):
Cameron C Ridley
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Beverly Murphy Represented By Paul Y Lee
Movant(s):
Lynda T. Bui (TR) Represented By Jeffrey S Sheldon
Trustee(s):
Lynda T. Bui (TR) Represented By Jeffrey S Sheldon
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
Docket 57
BACKGROUND
On September 15, 2017, Cleo Sonnenfeld ("Creditor") filed a Chapter 7 involuntary petition against Joshua Richardson ("Debtor"). On November 8, 2017, an order for relief was entered after Debtor stipulated to its entry. That same day, the Court entered an order approving a stipulation between Creditor, Debtor, and HLE Law Group ("HLE") which avoided a deed of trust recorded on June 20, 2017, in favor of HLE and against certain real property located at 13710 Oakley Dr., Moreno Valley, CA 92555 (the "Property").
On November 8, 2018, Trustee filed a motion to approve compromise; after two continuances, and the filing of a supplemental brief, the motion was granted pursuant to order entered January 3, 2019. The pertinent terms of the compromise are the following: (a) the Property is held in constructive trust for the benefit of Creditor, who holds a money judgment in the amount of $318,778.12; (b) Trustee is to sell the Property; (c) the funds otherwise payable on account of the avoided HLE lien constitute property of the estate; (d) the bankruptcy estate shall receive 30% of all sale proceeds in excess of $303,000 until such amount reaches $25,000; (e) Creditor to file an objection to Debtor’s homestead exemption; and, importantly, (f) avoidance actions are assigned to Creditor, with Creditor to receive 70% of any recovery and the bankruptcy estate to receive the remaining 30%.
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On August 9, 2019, Creditor filed a complaint against Gabriela Nieto Diaz and Laguna Motors, Inc. (collectively "Defendants"; individually "Diaz" and "Laguna Motors") for (1) avoidance, recovery, and preservation of preferential transfer; (2) avoidance of intentional fraudulent transfer; (3) avoidance and recovery of fraudulent transfer; and (4) recovery and preservation of avoided intentional transfer, constructive fraudulent transfer, and preferential transfer. On October 18, 2019, default was entered against Defendants. On October 31, 2019, Creditor filed a motion for default judgment. After the Court set and held a hearing on Creditor’s motion for default judgment, the Court entered default judgment against Defendants on December 6, 2019. On March 11, 2020, Creditor filed an abstract of judgment and a writ of execution relating to each individual defendant. On April 2, 2020, the Court approved Creditor’s application to appoint a process server.
On April 8, 2020, Laguna Motors filed a motion to set aside the default judgment. On April 29, 2020, Creditor filed an opposition. On May 13, 2020, the Court orally denied the motion without prejudice. Pursuant to the discussion on the record on May 13, and, as noted in the order entered on May 27, 2020, the Court informed Laguna Motors that if the default judgment was set aside pursuant to a future motion, then the Court intended to condition the setting aside upon the payment of Creditor’s reasonable attorney’ fees.
ANALYSIS
FED. R. CIV. P. Rule 55(c), made applicable to bankruptcy proceedings by FED. R. BANKR. P. Rule 7055, states: "[t]he court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)." FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, provides six separate grounds for relief from a judgment. Laguna Motors argues that Rule 60(b)(1), which provides for relief from judgment in cases of "mistake, inadvertence, or excusable neglect," is inapplicable here. As noted by the parties, a determination regarding relief under Rule 60(b)(1) "is at bottom an equitable one" and the Court should consider all relevant circumstances. See, e.g., Pioneer Inv. Servs. Co. v. Brunwick Assocs., 507 U.S. 380, 395 (1993).
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When a party seeks relief from a default judgment pursuant to Rule 60(b)(1), the Court must apply the Falk factors. See, e.g., Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011). Specifically, the Ninth Circuit has stated that: "To determine ‘good cause,’ [under FED. R. CIV. P. Rule 55(c)] a court must consider three factors: (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the default; (2) whether it had no meritorious defense; or (3) whether reopening the default judgment would prejudice the other party." United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (quotation omitted).
Regarding the first factor, the culpability of the party seeking to set aside default, the Ninth Circuit has imposed a rather high threshold for the culpability which would justify this Court’s refusal to set aside default. To wit:
A defendant’s conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer. As we have previously explained, in this context the term "intentionally" means that a movant cannot be treated as culpable simply for having made a conscious choice not to answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process. We have typically held that a defendant’s conduct was culpable for purposes of the good cause factors where there is no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith failure to respond. As we explained in TCI Group, our approach is consistent with Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 388, 393-95 (1993), in light of which it is clear that simple carelessness is not sufficient to treat a negligent failure to reply as inexcusable, at least without a demonstration that other equitable factors, such as prejudice, weight heavily in favor of denial of the motion to set aside a default.
Id. at 1092-93 (quotations and citations omitted).
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Here, Creditor argues that Laguna Motors: (a) made a calculated decision not to respond to the complaint; and (b) lied to the Court about whether it was aware of the service of the complaint. As noted in the block quotation from the Ninth Circuit, however, "the term "intentionally" means that a movant cannot be treated as culpable simply for having made a conscious choice not to answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process." Id. It is not clear to this Court that Creditor has raised a coherent argument establishing that Laguna Motors declined to answer the complaint to gain a strategic advantage or manipulate the legal process. Creditor argues that Laguna Motors and/or its counsel believed that service was improper, and chose not to answer due to the defective argument, while also pointing out that Laguna Motor’s principal was recently involved in a different adversary proceeding in this Court in which he filed an answer after being served by mail. Either way – whether Laguna Motors, its principal, and/or counsel, believed they did not need to respond due to defective service or realized they needed to respond but failed to do so – Creditor has not raised a meaningful argument that would establish an attempt by Laguna Motors to manipulate the legal process.
Additionally, Creditor suggests that Laguna Motors, through its principal, lied to the Court about when it was aware of service of the complaint. The Court does not have a sufficient record, however, to conclude that Laguna Motors’s principal has committed perjury. The Court also notes that the case relied upon by Creditor, Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347 (9th Cir. 1999), does not stand for the proposition Creditor uses it for. Specifically, Lake Alice Bar does not include a ruling by the Ninth Circuit on a motion to vacate a default judgment; instead, the district court issued the holding referenced by Creditor. The Court is not inclined to reference that district court decision as persuasive precedent, given that the district court’s rulings were extensively reversed/vacated in Lake Alice Bar, and the Ninth Circuit opted to send the case back to a different district court judge.
Regarding the second factor, whether the defendant has a meritorious defense, the Ninth Circuit has stated that:
A defendant seeking to vacate a default judgment must present specific facts that
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would constitute a defense. But the burden on a party seeking to vacate a default judgment is not extraordinarily heavy. All that is necessary to satisfy the meritorious defense requirement is to allege sufficient facts that, if true, would constitute a
defense: the question whether the factual allegation is true is not to be determined by the court when it decides the motion to set aside the default. Rather, that question would be the subject of the later litigation.
Id. at 1094.
Here, the motion asserts that the funds paid to Laguna Motors were part of a standard, arms-length agreement, that would allow Debtor to utilize Laguna Motor’s dealer’s license and provide Debtor with various equipment. It would appear that the allegations in the reply, if true, could constitute a valid defense to Creditor’s causes of action for fraudulent transfer. In Creditor’s opposition, Creditor quotes, at length, from the meeting of creditors in an attempt to disprove the assertion raised in the motion. In the reply, Laguna Motors then quotes from different sections of the meeting of creditors to support its position. Pursuant to above excerpt from the Ninth Circuit, however, the Court is not supposed to weigh evidence when considering this factor. See id. at 1094 ("[T]he question whether the factual allegation is true is not to be determined by the court when it decides the motion to set aside the default.").
Regarding the third factor, whether Creditor would suffer legal prejudice, the Court notes that caselaw establishes a rather high standard for legal prejudice. "To be prejudicial, the setting aside of a judgment must result in greater harm than simply delaying resolution of the case." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001). "The standard is whether his ability to pursue his claim will be hindered." Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984); see also Thompson v. Am. Home Assurance Co., 95 F.3d 429, 433-34 (6th Cir. 1996) ("Second, for the setting aside of a default judgment to be considered prejudicial, it must result in more than delay. Rather, the delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.").
Here, Creditor argues "there is a greater opportunity for fraud and collusion between Laguna Motors, its principal, and Debtor because Debtor has already been denied a discharge." [Dkt. No. 66, pg. 8]. The Court is not convinced that this line of argument establishes legal prejudice. Specifically, while Creditor points out that Laguna
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Motors’s principal’s declaration for the first motion to set aside default stated that he was unaware that a complaint was served on Movant, while the current declaration is silent regarding whether Laguna Motors received service, the Court is unwilling to conclude that this evidence establishes an intent to engage in fraud or collusion.
Additionally, caselaw cited above indicates that this Court should focus on whether the passage of time has hindered Creditor’s ability to pursue his claim. Creditor’s line of argument about the potential for fraud or collusion seems to be more directed to the first factor – culpability – than to legal prejudice.
As noted at the previous hearing and in the Court order entered on May 27, 2020, as docket number 65, the Court intends to condition the setting aside of the default judgment on the payment of reasonable attorneys’ fees incurred by Creditor as a result of the delay by Laguna Motors. The Court has reviewed the billing entries submitted as an exhibit to Creditor’s opposition and finds those entries to be reasonable. The Court is inclined to strike fees for work done before October 7, 2019, however, because those billing entries do not appear to have been proximately caused by the default (the deadline to answer the complaint was October 7, 2019, and the clerk did not actually enter default until October 18, 2019). This results in a reduction in fees in the amount of $470 and a reduction in expenses in the amount of $185.82
The Court is inclined to GRANT the motion conditioned on the payment of attorney’s fees and expenses in the amount of $11,813.94 within thirty (30) days.
APPEARANCES REQUIRED.
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
2:00 PM
Defendant(s):
Gabriela Nieto Diaz Pro Se
Laguna Motors, Inc. Represented By Julian K Bach
Movant(s):
Laguna Motors, Inc. Represented By Julian K Bach
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#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
Docket 69
On February 7, 2018, Vance Johnson ("Defendant") filed a Chapter 11 voluntary petition. On July 3, 2018, Defendant’s case was converted to Chapter 7.
On May 7, 2018, Bankers Health Group, LLC ("Plaintiff") filed a non-dischargeability complaint against Defendant pursuant to 11 U.S.C. § 523(a)(2)(B), (a)(4), and (a)(6). On June 7, 2018, Defendant filed his answer. After the initial status conference, the Court entered a scheduling order on July 17, 2018. Subsequently, the parties stipulated to a continuance of the status conference, and an extension of certain dates in the scheduling order, on three occasions.
On June 24, 2019, Plaintiff filed a motion for summary judgment, and amended the motion four days later. On July 31, 2019, Defendant filed his opposition. On August 26, 2019, the Court denied Plaintiff’s motion for summary judgment.
The parties then stipulated to continue the status conference on three further
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occasions. On April 28, 2020, the Court granted Plaintiff’s unopposed motion to extend the discovery deadline until June 30, 2020.
On April 13, 2020, Plaintiff filed a motion for leave to file an amended complaint to add a cause of action under 11 U.S.C. § 523(a)(2)(A). On April 29, 2020, Defendant filed an opposition. The Court denied the motion without prejudice on May 19, 2020.
On May 19, 2020, Plaintiff filed a motion to extend the discovery deadline. On May 27, 2020, Defendant filed an opposition. On June 3, 2020, Plaintiff filed its reply.
Plaintiff asserts that "Defendant has been slow to produce at best, or at worst, evasive." [Dkt. No. 69, pg. 6]. Defendant’s opposition primarily contends that an extension is unnecessary because Defendant will respond to the outstanding discovery by the deadline and Plaintiff will receive other responses from Pacific Premier Bank and Wells Fargo Bank. The final paragraph of Plaintiff’s reply contains the following:
Plaintiff requests this discovery extension out of an abundance of caution. If Defendant continues to be unresponsive, Plaintiff will file a motion to compel discovery on June 4, 2020. At that time, Defendant will request either an additional hearing date in advance of June 30, 2020 or to have the motion heard on shortened time. If neither of the above options are acceptable to the Court, this motion provides an additional pathway to preserve Plaintiff’s rights to discovery.
The Court also notes that Plaintiff has filed a motion to compel discovery production and for sanctions, which is currently sent for hearing on July 1, 2020.
As noted by Plaintiff, it is well-established that the primary consideration for the Court when presented with a request to modify a scheduling order is the moving
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party’s diligence. See, e.g.. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
While this adversary proceeding was commenced more than two years, the parties have sought and obtained many continuances and the actual litigation activity in this case has largely been conducted outside of the Court’s view. Defendant offers the assertion that "[t]his case has not been diligently prosecuted by Plaintiff" [Dkt. No. 72, pg. 3], but does not provide any detail or evidence to support the assertion.
Nevertheless, given the extensive delays in this case, the Court intends to closely monitor the proceeding. Given the pending discovery motion calendared for July 1, 2020, and noting that the Court can extend its discovery deadline after the expiration of the deadline, the Court is inclined to CONTINUE this matter to July 1, 2020, for the discovery process to more fully unfold and for the record to develop further.
Tentative Ruling:
Parties to apprise the Court of the status of discovery.
APPEARANCES REQUIRED.
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
2:00 PM
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
From: 4/1/20, 4/14/20, 5/13/20 EH
Docket 51
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
From: 5/13/20 EH
Docket 58
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By
2:00 PM
Trustee(s):
Baruch C Cohen
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 97
- NONE LISTED -
Debtor(s):
Victor Thomas Lawton Represented By Norma Duenas
Movant(s):
Victor Thomas Lawton Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 138
- NONE LISTED -
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Movant(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 105
On May 8, 2018, Ruby Lee Frazier ("Debtor") filed a Chapter 13 voluntary petition. The proposed plan was confirmed on August 3, 2018.
On March 4, 2020, the Chapter 13 Trustee filed a Motion to Dismiss Debtor’s case on basis that Debtor was in arrears on her plan. Debtor filed an opposition to the motion on March 13, 2020, setting the hearing on the opposition on April 2, 2020. On March 29, 2020, Debtor filed a motion to modify her plan seeking to suspend three payments. The court continued the hearing on April 2, 2020 to April 16, 2020.
On April 16, 2020, Debtor filed a declaration that no party requested a hearing on motion. On April 23, the Court grant the motion to modify the plan, which suspended three months of payments. In addition, Debtor’s plan payment was modified and increased to $2000 in April 2020, while unbeknownst to the Debtor’s lawyer, Debtor continued to make the old plan payment of $1845 in April. On April 30, Debtor failed to appear in court and the Court dismissed the case. Shortly after the dismissal, Debtor made payment for the missing difference $155.
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On May 6, 2020, Debtor filed the motion to vacate dismissal.
The Debtor requested relief under FED. R. CIV. P. Rule 60(b), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, on the basis of mistake, inadvertence or excusable neglect. FED. R. CIV. P. Rule 60(b) states:
Grounds for Relief from a Final Judgment, Order, or Proceeding. 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.
A court’s treatment of Rule 60(b) is not intended to be rigid, but instead requires the court to equitably consider all relevant circumstances surrounding. Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993). Excusable neglect under 60(b) is a some-what elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant. Id, at 392. In evaluating claims of excusable neglect, under Pioneer, the court is instructed to consider: (1) the extent of prejudice to the debtor if relief is not granted; (2) the length of the delay between entry of the order and the request that it be set aside, and the potential impact of granting such relief on the judicial proceedings; (3) the reason for any such delay, including whether it was within the reasonable control of the movant; and (4) whether the movant has acted in good faith. Id.
The Pioneer factors weigh in favor of vacating dismissal. The prejudice is minimal. Specifically, as to the April payment, Debtor did have the intention to make the payment as the Debtor paid the original agreed amount, $1850. Debtor promptly cured and paid the difference immediately after realizing the mistake. The length of delay was small. Debtor filed the motion to vacate dismissal on 5/6/2020 after the case had been dismissed on 4/20/2020. The delay in filing the Rule 60(b)(1) motion, while slightly longer than the two-week delay in Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, at 812, was still not long enough to justify denying
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relief.
The reason for the delay was carelessness. There’s no evidence of bad faith. Debtor had filed the declaration that no party requested a hearing on motion prior to the April 30 hearing and mistakenly believed that no hearing would be held. In addition, Debtor’s lawyer was unaware that Debtor was making the payment under the prior plan before he failed to appear in April 30 hearing.
The Court is inclined to GRANT the motion and VACATE dismissal conditioned on payment of $4,155 in plan payments.
APPEARANCES REQUIRED. Michael D. Franco to personally appear at the hearing.
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Movant(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 47
- NONE LISTED -
Debtor(s):
Gloria Simmons Represented By Bruce A Wilson
Movant(s):
Gloria Simmons Represented By Bruce A Wilson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Movant(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Rebecca Andrade-Friloux Represented By Tina H Trinh Tina H Trinh Tina H Trinh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 41
On November 19, 2019 (hereinafter the "Petition Date"), Roshanda Jeannen Dodds (hereinafter "Debtor") filed a Chapter 13 voluntary petition. On March 3, 2020, Debtor’s Chapter 13 plan was confirmed.
Prior to the confirmation of Debtor’s plan, on November 21, 2019, CIG Financial (hereinafter "CIG") filed a proof of claim in the amount of $2,967.52 (hereinafter "Claim 1-1"). Debtor provided evidence that Claim 1-1 arose from a retail installment sale contract to purchase a 2001 Mazda 626. Dkt. No. 41, Decl. of Roshanda Jeannen Dodds. The retail installment sale contract was between the Debtor and Car Show. The account appears to have been transferred to CIG. Id.
Debtor admits, that after entering into the agreement, she could not maintain the payments. Id. Sometime around April 16, 2010, CIG was a awarded a judgment in the amount of $7,323.00. Dkt. No. 41, Ex. 1. Nonetheless, after the judgment, Debtor still could not maintain the payments pursuant to the agreement.
In or prior to 2014, Debtor stated that she had the vehicle repossessed. She alleges that she neither has any knowledge of CIG bringing a civil action against her after April 11, 2014 nor was there any payments made after April 11, 2014. Dkt. No. 41, Decl. Of Roshanda Jeannen Dodds.
Debtor contends that Claim 1-1 was for a contractual obligation made in writing and are subject to the four-year statute of limitations proscribed by California Code of Civil Procedure § 337. Debtor alleges that more than four years have passed
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since the Debtor made any payments to Claim 1-1. Id. Thus, Claim 1-1 should be disallowed.
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.
Debtor acknowledges the fact that she entered into a written retail installment agreement with Car Show. She conceded that she could not maintain payments
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pursuant to the agreement. Thus, CIG filed a lawsuit sometime around April 16, 2010. CIG was awarded a judgment against Debtor.
Cal. Code Civ. Proc. § 377 governs when a civil action, other than recovery of real property, can be commenced. Cal. Code Civ. Proc. § 377 prohibits a person for bringing suit or initiating an arbitration or other legal proceedings to collect debt after four years has passed. In this case, CIG filed a lawsuit and was awarded a judgment within the time limit.
Upon entry, a money judgment is enforceable for ten years. Cal. Code Civ.
Proc. § 683.02. At the end of this period, enforcement of the judgment is barred if not renewed, and any liens created by the enforcement process are extinguished. No further action, including levy, sale, collection, or delivery pursuant to the judgment, or pursuant to a writ or order issued to enforce the judgment, may take place. In re Lobherr, 282 B.R. 912 (Bankr. C.D. Cal. 2002).
CIG submitted its claim within the enforcement period. 11. U.S.C. § 502(b) (1). Furthermore, pursuant to 11 U.S.C. § 108(c), a judgment does not become unenforceable because the creditor failed to renew it when the stay is in effect. 11
U.S.C. §108(c) extends the period in which the creditor could enforce its judgment. Id. Thus, the period of duration under Cal. Code. Civ. Proc. §683 will not expire until thirty days after all the assets of Debtor’s estate have been finally distributed, an event that has not yet occurred.
For all the reasons mentioned above, the Court is inclined to DENY the motion.
APPERANCES REQUIRED.
11:00 AM
Debtor(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Movant(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 33
- NONE LISTED -
Debtor(s):
Daniel Gardono Represented By Gregory Ashcraft
Joint Debtor(s):
Dianna Isla Represented By
Gregory Ashcraft
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 14
On April 13, 2020, Jimmie Moore ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2017 Kia Sportage (the "Property"). Pursuant to Claim 7 First Investors Servicing Corporation ("Creditor") holds a secured claim against the Property. Claim 7 identifies the total claim and the secured value of Claim 7 as $23,120.33.
On May 12, 2020, Debtor filed a motion to value the Property. Debtor asserts that the Property should be valued at $13,452. The Court also notes that the motion to value was filed before Creditor filed Claim 7, and the motion to value lists a total claim amount of $25,362.
One of the benefits of filing a Chapter 13 bankruptcy is that under § 506(a) the debtor
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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).
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 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 identifying the "trade-in value" retail value of the Property. The Court cannot conclude that the Kelly Blue Book report provided is sufficient to allow the Court to determine the Property’s "retail value."
Tentative Ruling:
The Court is inclined to DENY the motion or CONTINUE the matter for Debtor to provide supplemental evidence.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jimmie Moore II Represented By Nancy Korompis
Movant(s):
Jimmie Moore II Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Anthony Moral Represented By Kevin M Mahan
Joint Debtor(s):
Jennifer Rios Represented By
Kevin M Mahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Loi Phuoc Au Represented By
Todd B Becker
Joint Debtor(s):
Nancy O Sengdara-Au Represented By Todd B Becker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Merle Roger Johnson Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rorye James Mosley Sr. Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Henry James Berdin Kilantang Represented By Paul Y Lee
Joint Debtor(s):
Carla D. Kilantang Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ted Pattison Represented By
Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Annette S. Cofer Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Thomas Anthony Aguna Sr. Represented By Dana Travis
Joint Debtor(s):
Sandra Leane Aguna Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Alexander Liberator Ygloria Represented By Benjamin R Heston
Joint Debtor(s):
Vivian Grace Ygloria Represented By Benjamin R Heston
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Candice Eliabeth Costain Represented By Kristin R Lamar
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert A. Casillas Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mary Therese Conley Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 152
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 221
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- NONE LISTED -
Debtor(s):
Jesus Danny Ontiveros III Represented By Gary S Saunders
Joint Debtor(s):
Marie Irene Ontiveros Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 94
- NONE LISTED -
Debtor(s):
Jose Luis Rojas Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 123
- 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
Docket 101
- 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 86
- NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- 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 54
- NONE LISTED -
Debtor(s):
Mario Portillo Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- 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
11:01 AM
EH
Docket 76
- NONE LISTED -
Debtor(s):
Corinthia A. Williams Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 98
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 51
- NONE LISTED -
Debtor(s):
Jose Diaz Represented By
Nima S Vokshori
Joint Debtor(s):
Betty Diaz Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Jorge Avendano Sosa Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Anthony P Mendoza Represented By Paul Y Lee
Joint Debtor(s):
Lena E Mendoza Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Joe A Pickens II Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Ryan Sollazzo Represented By Paul Y Lee
Joint Debtor(s):
Reanna Sollazzo Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 26
- NONE LISTED -
Debtor(s):
Salem Eid Massoud Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Rhonda Jan Kennedy Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 24
- NONE LISTED -
Debtor(s):
Susana Perez Cline Represented By Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Rudy Michael Castillo Represented By Nicholas M Wajda
Joint Debtor(s):
Monica Michelle Castillo Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
- NONE LISTED -
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
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Carlos Villasenor Represented By Christopher Hewitt
Joint Debtor(s):
Christine Villasenor Represented By Christopher Hewitt
Trustee(s):
Charles W Daff (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Jorge Mercado Represented By Paul Y Lee
Joint Debtor(s):
Martha Mercado Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 38
- NONE LISTED -
Debtor(s):
Chris Dennis Represented By
Christopher Hewitt
Joint Debtor(s):
Ami Dennis Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
- NONE LISTED -
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
CASE DISMISSED 3/14/19
EH
Docket 48
- NONE LISTED -
Debtor(s):
Alfredo N Adriano Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
EH
Docket 43
- NONE LISTED -
Debtor(s):
Trevor D. Washington Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Washington Represented By Julie J Villalobos
Movant(s):
Deutsche Bank Trust Company Represented By Gilbert R Yabes Arnold L Graff Jacky Wang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
EH
Docket 22
- NONE LISTED -
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: JOSE OMAR ZAPATA
EH
Docket 18
- NONE LISTED -
Debtor(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Movant(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 6/10/20 EH
Docket 13
- NONE LISTED -
Debtor(s):
Nancy Luella Dobson Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
MOVANT: DEUTSCHE BANK TRUST COMPANY AMERICAS
EH
Docket 43
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Deutsche Bank Trust Company Americans, (hereinafter "Deutsche Bank"), as Trustee for Residential Accredit Loans, Inc, Mortgage, claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust, Corporate Assignment of Deed of Trust, post-petition Ledger, Notice of Trustee’s Sale, and Adjustable Rate Note, Deutsche Bank has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash
2:00 PM
payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have not opposed the motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. Grant relief from ¶¶ 2 and 3. Debtor is a borrower as defined in Cal. Civ. Code § 2920.5(c)(2)(c). DENY 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):
Trevor D. Washington Represented By Julie J Villalobos
Joint Debtor(s):
Sandra Washington Represented By Julie J Villalobos
Movant(s):
Deutsche Bank Trust Company Represented By Gilbert R Yabes Arnold L Graff Jacky Wang
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
EH
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
2:00 PM
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion. APPEARANCES REQURED.
2:00 PM
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
MOVANT: JOSE OMAR ZAPATA
EH
Docket 18
- NONE LISTED -
Debtor(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Movant(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 578
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner
2:00 PM
Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
Adv#: 6:19-01050 Baker et al v. Mount
Nature of Suit: (62 (Dischargeability - 523(a)(2), false pretenses, false representation, actual fraud)),(67 (Dischargeability - 523(a)(4), fraud as fiduciary, embezzlement, larceny)),(68 (Dischargeability - 523(a)(6), willful and malicious injury)),(65 (Dischargeability - other)) (Cohen, Baruch)
From: 5/8/19, 6/5/19, 11/6/19 EH
Docket 1
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 33
Debtor(s):
Maria Fabiola Marroquin Represented By Mark A Mellor
Movant(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond
Trustee(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Docket 160
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
11:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 6/9/20 EH
Docket 153
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw
11:00 AM
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
EH
Docket 65
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. PennyMac Loan Services, LLC (hereinafter "PennyMac") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Note, Loan Modification Agreement, Deed of Trust, the Assignment of Deed to Trust, and the ledger of loan payments, PennyMac has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
11:00 AM
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 73. Pg. 1. Debtors contest that they have failed to pay five payments. Id. They alleged that they only missed two payments and have made three payments, that of February, March, and April. Id. Debtors have been approved for a loan modification program trial plan under Veterans Administration Modification. Id. They are waiting to be approved permanently to cure remaining deficiencies. Id. In the alternative, it they are not granted the permanent loan modification, they are requesting an adequate protection agreement. Id. at 2.
Parties are to inform the Court of any adequate protection discussions, and the status of loan modification.
APPEARANCES REQUIRED.
Debtor(s):
Gregory Lincoln Represented By Dana Travis
Joint Debtor(s):
Norma Araceli Lincoln Represented By Dana Travis
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 4/14/20, 6/9/20 EH
Docket 50
Service: Proper Opposition: Yes
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Alfredo Pena Represented By
Dana Travis Milton Williams
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Movant(s):
Toyota Motor Credit Corporation Represented By
11:00 AM
Trustee(s):
Austin P Nagel Kirsten Martinez
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING
EH
Docket 59
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Lakeview Loan Services, LLC (hereinafter "Lakeview") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Note, Loan Modification Agreement, Deed of Trust, the Corporate Assignment of Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments, Lakeview has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash
11:00 AM
payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has not opposed this motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2, 3 and 12.
DENY 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):
Alice Chow Represented By
Andrew Nguyen
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CITIZENS BANK, N.A.
EH
Docket 38
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1), "cause" must be shown. Citizens Bank, N.A. (hereinafter "CB") claims that post-petition post-confirmation car payments have not been made by the Debtor. By providing the Retail Installment Sale Contract—Simple Finance Charge, Certificate of Title, and NADA Guides Value Report, CB has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Roswell, 2007 Bankr. Lexis 57 (Bankr. S.D. Ill. 2007) (stating that a debtor’s failure to make her chapter 13 plan payments after they came due was evidence of her inability to properly fund the plan and to provide adequate protection to the credit union for its secured interest in debtor’s vehicle.).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds.,
11:00 AM
16th ed.).
Debtor has not opposed this motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). 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):
Golda Y Williams Represented By Daniel King
Movant(s):
Citizens Bank, N.A. Represented By Scott S Weltman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BOSCO CREDIT LLC
EH
Docket 54
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Bosco Credit, LLC (hereinafter "Bosco Credit") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Home Equity Line of Credit Agreement and Disclosure Statement, Variable Interest Rate Revolving Line of Creed Deed of Trust, the Assignment of Deed to Trust, and the ledger of loan payments, Bosco Credit has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
11:00 AM
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 56. Debtor, Jerry Melendrez, declares that on June 9, 2020, he paid $1,588.00 and on June 12, 2020, he paid $1,748.00 to Bosco Credit. Id. at Decl. of Jerry Melendrez. He provided a confirmation number for each payment. He also claims that, by the hearing date, he will be current and the property is necessary for an effective reorganization.
Parties are to inform the Court of the current status of the delinquencies.
APPEARANCES REQUIRED.
Debtor(s):
Jerry Melendrez Represented By Todd L Turoci
Joint Debtor(s):
Laura Therese Melendrez Represented By Todd L Turoci
Movant(s):
BOSCO CREDIT LLC Represented By Kelsey X Luu James F Lewin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 5/19/20 EH
Docket 38
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association (hereinafter "U.S. Bank") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtors must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
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Debtors have opposed the motion. Debtors state that "they were ill and fell behind in payments." Dkt. No. 40, Decl. of Atorney[sic] of Debtor. They have been trying to bring the account current ever since. Id. They have made one payment on April 24, 2020 and another two payments on May 2, 2020. Id. Debtors are requesting that U.S. Bank either withdraw its motion or agree to stay current adequate protection agreement.
Parties are to update the Court on the status of adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Movant(s):
U.S. Bank National Association Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CENLAR FSB
From: 5/19/20 EH
Docket 35
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Censlar FSB as servicer for CitiMortgage, Inc. (hereinafter "Cen FSB") claims that post- petition preconfirmation and post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post- petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
11:00 AM
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. Grant relief from ¶¶ 2 and 3. Grant relief from the Co-debtor stay pursuant to 11 U.S.C. § 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):
Margarito Horta Represented By
James D. Hornbuckle
Movant(s):
Cenlar FSB as servicer for Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 5/19/20 EH
Docket 35
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C § 362(d)(1) "cause" must be shown. U.S. Bank, National Association (hereinafter "U.S. Bank"), as trustee on behalf of the holders of the Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates, Series 20070-OPX, claims that post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens
11:00 AM
or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. Grant relief pursuant to ¶¶ 2 and 3. Co- debtor stay pursuant to 11. U.S.C. § 1301 is terminated.
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):
Florence Marie Rodriguez Represented By Steven A Alpert
Movant(s):
U.S. Bank National Association as Represented By
Nancy L Lee Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: REVERSE MORTGAGE SOLUTIONS INC
CASE DISMISSED 5/14/20
EH
Docket 47
- NONE LISTED -
Debtor(s):
Eugenio Giuseppe Mannella Represented By Suzette Douglas
Movant(s):
Reverse Mortgage Solutions, Inc. Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 43
- NONE LISTED -
Debtor(s):
Debra Suzanne Towne Represented By Paul Y Lee
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 45
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. SchoolsFirst Federal Credit Union (hereinafter "SchoolsFirst") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Loan and Security Agreements and Disclosure Statement, Lien and Title Information, and loan ledger, SchoolsFirst has shown that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—
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must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). SchoolsFirst has not met its burden to show that Debtor has no equity in the property. Valuation of the vehicle was not provided.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor responded to this motion, stating that she "plans cure the default by June 27, 2020." Dkt. No. 50 Pg. 2. She sent a payment of $632.00 on June 12, 2020, sent a payment of $291.29 on June 21, 2020, and will send a payment of $315.43 on June 27, 2020. Id. at Decl. of Bridgette Donnais Turner.
Parties are to inform the Court on the status of the default. APPEARANCES REQUIRED.
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: BANK OF AMERICA, N.A.
From: 5/26/20 EH
Docket 25
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Hernan Pizzulin Represented By Tom A Moore
Joint Debtor(s):
Tonya Thomas Represented By Tom A Moore
Movant(s):
Bank of America, N.A. Represented By Darlene C Vigil
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Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: CITIZENS BANK, N.A.
EH
Docket 29
Service: Proper Opposition: None
To attain relief from stay under 11 U.S.C §362(d)(1) "cause" must be shown. Citizens Bank, N.A. (hereinafter "Citizens Bank") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Certificate of Title, and NADA Retail Value Report, Citizens Bank has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds.,
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16th ed.). Citizens Bank has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Troy Brooks Represented By
Kevin Tang
Movant(s):
Citizens Bank, N.A. Represented By Scott S Weltman
Trustee(s):
Robert Whitmore (TR) Pro Se
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MOVANT: JESUS AND MARYLOU MOYA
From: 5/26/20, 6/9/20 EH
Docket 24
Service: Improper Opposition: None
Parties to apprise the Court of the status of arrears, if any, and the status of the insurance policy.
APPEARANCES REQUIRED.
Debtor(s):
Luis Fernando Narvaez Escoto Represented By Todd L Turoci
Movant(s):
Jesus Moya Represented By
Mark A Mellor
Trustee(s):
Rod Danielson (TR) Pro Se
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BD537975 Los Angeles Superior Court Case No. BD537975 MOVANT: PATRICIA M. CRUZ
EH
Docket 16
Background
On January 19, 2011, Patricia Moonyeen Cruz (hereinafter "Movant") and Ronald
Cruz were opposing parties in a divorce proceeding in the Superior Court of the State of California. Dkt. No. 16, Decl. of Abe A. D. Marapao. On June 26, 2018, Movant and Debtor entered into a stipulation agreement, which was approved by the Superior Court. Id. Here are the pertinent terms, conditions, and provisions that Debtor agreed to pay to or for Movant and filed as unsecured claims in his commencement documents:
$30,000 for spousal support in arrears;
$300,000 representing fifty percent of community property;
$10,000.00 in attorney fees;
$14,586.00 representing value of vehicles; and
26,002.35 representing annuity;
Movant claims that because of the nature of the claim, that is, they are un-dischargeable, and they arise from a divorcee proceeding, they can be most expeditiously resolved in a non-bankruptcy forum. Id. Pg. 16.
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Analysis
Pursuant to 11 U.S.C. §362 (1), the filing of a Chapter 11 voluntary petition operates as a stay on an enforcement of a judgment against the debtor or against the property of the estate. At the filing of a Chapter 7 voluntary petition creates an estate. Such estate is comprised of property, wherever located and by whomever held, all legal or equitable interests of the debtor in property. 11 U.S.C. §541(a) (2). These clauses, as a whole, put a stay on the enforcement of the unlawful detainer and the continuation of its appeal.
11 U.S.C. § 362(d)(1) states:
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 conditioning such stay –
for cause, including the lack of adequate protection of an interest in property of such party in interest;
II. Non-
Bankruptcy Action
In considering a motion for relief from the automatic stay to pursue a non- bankruptcy action, the Court applies the Curtis factors:
(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 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 good or proceeds in question; (7) whether the litigation in another forum would prejudice the interests of other creditors, the creditor’s
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committee and other interested parties; (8) whether the judgment claim arising from the foreign action is subject to equitable subordination; (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 and the "balance of hurt."
In re Roger, 539 B.R. 837, 844-45 (C.D. Cal. 2015); see also In re Kronemyer, 405 B.R. 915, 921 (B.A.P. 9th Cir. 2009) (adopting Curtis factors). In Roger, the Court further stated:
The Ninth Circuit has recognized that the Curtis factors are appropriate, nonexclusive, factors to consider in deciding whether to grant relief from the automatic stay to allow pending litigation to continue in another forum.
While the Curtis factors are widely used to determine the existence of cause, not all of the factors are relevant in every case, nor is a court required to give each factor equal weight. According to the court in Curtis, the most important factor in determining whether to grant relief from the automatic stay to permit litigation against the debtor in another forum is the effect of such litigation on the administration of the estate. Even slight interference with the administration may be enough to preclude relief in the absence of a commensurate benefit. That said, some cases involving the automatic stay provision do not mention the Curtis factors at all.
A. Summary of Relevant Factors
Complete or partial resolution of the issues. Movant’s claims against Debtor are non-dischargeable because they are considered domestic support obligations. 11
U.S.C. §§ 523(a)(5) and 523(a)(15). The Superior Court may be best able to resolve said issue because of its expertise in hearing those types of matters. This factor weighs in favor of Movant.
Connection with bankruptcy case. There is little to any connection to the bankruptcy case at hand. The claims are non-dischargeable and would not affect
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the estate. This factor weighs in favor of Movant.
Prejudice to creditors/interested parties. The expense required to litigate this action would prejudice Debtor’s creditors. However, litigation expenses are always applicable when a party seeks relief from the automatic stay to pursue litigation in a different forum. This factor is neutral
Judicial economy. Having a protracted litigation of a separate proceeding in a non- bankruptcy forum appears uneconomical. However, the litigation would take place in a forum where both parties are residence of. Thus, this factor is neutral.
Ready for trial. Movant and Debtor had settled the matter with a stipulation agreement eight years after the divorce proceeding commenced. Thus, significant activity has taken place in this action. This factor weighs in favor of Movant.
Balance of Harm. It does not appear that either party would be significantly harm by continuing the proceeding in a non-bankruptcy forum. This factor is neutral.
Debtor has not opposed the motion. The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion.
Tentative Ruling:
For the reasons mentioned above and weighing the Curtis Factors, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 6.
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):
Ronald V. Cruz Represented By Walter Scott
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Movant(s):
Patricia Moonyeen Cruz Represented By
William H Brownstein
Trustee(s):
Charles W Daff (TR) Pro Se
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MOVANT: CARVANA LLC
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Docket 20
Service: Proper Opposition: None
To attain relief from stay under 11 U.S.C §362(d)(1) "cause" must be shown. Carvana, LLC (hereinafter "Carvana") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Conditional Sale Contract and Security Agreement, Lien and Title Information, and NADA Guides Value Report, Carvana has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must
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be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Carvana has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). The lack of a response from Debtor, pursuant to Local Bankruptcy Rule 9013-1(h), may be deemed to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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 R Reza Represented By
Paul Y Lee
Movant(s):
Carvana, LLC Represented By
Lemuel Bryant Jaquez
Trustee(s):
Todd A. Frealy (TR) Pro Se
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MOVANT: OPPORTUNITY FUND COMMUNITY DEVELOPMENT
EH
Docket 15
Service: Proper Opposition: None
To attain relief from stay under 11 U.S.C §362(d)(1) "cause" must be shown. Opportunity Fund Community Development (hereinafter "OFCD") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Loan Agreement for the vehicle and the trailer, Certificate of Title for the vehicle and the trailer, and the Debtor’s intent to surrender the vehicle, OFCD has shown "cause." In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds.,
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16th ed.). Carvana has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.). Debtor also has the burden of proving that the property at issue is necessary to an effective organization. 11 U.S.C. § 362(g). Debtor has not opposed the motion.
Debtor and OFCD’s counsel submitted a stipulation agreeing to (1) that the automatic stay be granted to OFCD, (2) Rule 4001(a)(3) be waived, and (3) and that the stipulation order be binding for any subsequent proceeding if this proceeding is dismissed. Dkt. No. 21.
However, it appears the stipulation was filed incorrectly a "response," not as a stipulation.
APPEARANCES REQUIRED.
Debtor(s):
Jose Arquimides Ibarra Represented By Antonio John Ibarra
Joint Debtor(s):
Ana Maria Ibarra Represented By Antonio John Ibarra
Movant(s):
Opportunity Fund Community Represented By Mark Mark Good
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Trustee(s):
Howard B Grobstein (TR) Pro Se
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MOVANT: FIRST TECH FEDERAL CREDIT UNION
EH
Docket 11
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. First Tech Federal Credit Union (hereinafter "First Tech") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Certificate of Title, NADA Retail Value, Debtor’s intent to surrender the vehicle, and Transaction History, First Tech has shown that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no
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equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). SchoolsFirst has not met its burden to show that Debtor has no equity in the property. Valuation of the vehicle was not provided.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Debtor has not responded to this motion, and Debtor has indicated his intent to surrender the vehicle. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(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):
Juan Sandoval Represented By
George C Panagiotou
Movant(s):
First Tech Federal Credit Union Represented By Arnold L Graff
Trustee(s):
Steven M Speier (TR) Pro Se
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1JJV532DXKL116193
MOVANT: BMO HARRIS BANK N.A.
EH
Docket 17
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. BMO Harris Bank, N.A. (hereinafter "BMO") claims that Soo Young Cheong (hereinafter "Debtor"), who filed a Chapter 7 petition, failed to timely meet the requirements of 11
U.S.C. § 521(A)(2)(A); thus, the automatic stay is terminated pursuant to 11 U.S.C. § 362(h).
"The Bankruptcy Code requires and individual debtor in a chapter 7 case to [file a statement of his intention with respect to the retention or surrender of such property]. 11 U.S.C. § 521(a)(2). A debtor must file a statement of intention…within [the earlier of thirty days after the filing of the petition or thirty days after the first date set for the meeting of creditors]…If a debtor fails to timely meet those obligations, the automatic
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stay terminates and the property is removed from the estate unless the Chapter 7 trustee obtains a determination that the property is of consequential value or benefit to the estate. 11 U.S.C. §§ 521(a)(2)(C), 362(h)(1) and (2)." In re Blixseth, 685 F.3d 865, 867 (9th Cir. 2012).
BMO provided the Loan and Security Agreements, the Certificates of Titles, Modification Agreements, and Loan Damage Calculators of a 2016-Volvo-Tractor Truck, two 2018-Volvo-Tractor Trucks, and a 2019-Wabash Trail (hereinafter, collectively the "Vehicles"). These documents show that the Vehicles are personal property of the Debtor and collateral of the claims owed to BMO. Debtor neither listed these Vehicles in his commencement document nor listed his intentions for these Vehicles. To timely state his intentions for the vehicles, Debtor would have had to file his Statement of Intention by May 13, 2020. No such Statement of Intention, stating whether Debtor plan on retaining or surrendering these Vehicles, was filed.
Second, no such determination was made by the Chapter 7 Trustee on whether the Vehicles were consequential value or benefit to the estate.
Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. GRANTS request to confirm that there is no stay in effect.
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):
Soo Young Cheong Represented By Jong Y Kim
Movant(s):
BMO HARRIS BANK N.A. Represented By
Raffi Khatchadourian
Trustee(s):
Howard B Grobstein (TR) Pro Se
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MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20 EH
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing
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Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion.
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APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
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MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 9
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Santander Consumer USA, Inc. (hereinafter "Santander") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v.
Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Certificate of Title, NADA Retail Value, and Debtor’s intent to surrender the vehicle, Santander has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no
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equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Santander has met its burden to show that Debtor has no equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Debtor has neither responded to this motion nor indicated his intent to surrender the vehicle. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay.
GRANT request under ¶ 2. DENY 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):
Priscilla Elizabeth Lara Represented By Edgar P Lombera
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
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MOVANT: JOSEPH HERNANDEZ
From: 6/9/20 EH
Docket 10
Service: Improper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11
U.S.C. § 362(c)(4)(D)(i)(I) because Debtor had two bankruptcy cases dismissed in the previous year. Section 362(c)(4)(D) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." As to the 2018 case, Debtor intended to prove that there was a change in his personal situation pursuant to 11 U.S.C. § 362(c)(4)(D) (i)(III). Nevertheless, Debtor failed to provide any evidence relevant to prove his expenses as he alleged that he did not save receipts and bank statements in his declaration. The Court notes Debtor can contact the hotel and request copies of receipts. As to the 2019 case, Debtor did not provide any information whatsoever regarding how much his income was reduced or how much money he earned when he was employed at Pepsi and Amazon after he was terminated from Food For Less. In addition, the evidence submitted to the Court merely show that his situation was improved partly because he was receiving the unemployment benefits which is a temporary benefit, nor is there evidence of reconciliation between Debtor and his wife. Last, the proof
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of service is dated October 2020. Therefore, the Court is inclined to DENY the request to impose the stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Joseph R. Hernandez Represented By Michael Smith
Movant(s):
Joseph R. Hernandez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 10
Service: Proper Opposition: Debtor
On March 9, 2020 ("Petition Date"), Jose Omar Zapata (hereinafter "Debtor") filed a Chapter 13 voluntary petition. In his commencement documents, Debtor listed the property located at 29706 Stonewood Road, Temecula, California 91775 (hereinafter the "Property") in his commencement documents.
On May 28, 2020, Wilmington Savings Fund Society (hereinafter "FSB"), as owner trustee of the Residential Credit Opportunities Trust V-E, filed this motion for relief from stay, claiming, amongst other things, that the filing of this petition is part of a scheme to delay, hinder, or defraud it. Dkt. No. 10, Pg.10. FSB provided evidence showing within the last two years bankruptcy petitions which affected this Property. Id.
A petition filed under this title, operates as a stay to any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C § 362(a). The property of the estate includes all legal
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or equitable interests of the debtor in property. 11 U.S.C. §541(a)(1).
FSB listed several bankruptcy filings, other than this one: one filed by the Debtor and two filed by Jackie May Zapata, spouse of the Debtor. In regard to the first case
(18-18622) filed by Jackie May Zapata, the Trustee requested the case be dismissed at the confirmation hearing because (1) only one of the three plan payments were paid,
only one of the three mortgage payments that came due were paid, and (3) there was a pending creditor objection. In regard to the second case (20-10662) filed by Jackie May Zapata, the Trustee requested the case be dismissed because (1) Debtor failed to make the April payment to the Trustee, (2) there was no evidence of March or April mortgage payment being made, (3) and Debtor’s failure to file multiple required documents. In regard to the other case (19-14136) filed by Debtor, the Debtor’s counsel requested the case be dismissed because Debtor did not want to continue the proceeding.
Debtor filed a limited opposition. Debtor alleged that he and FSB had reached an agreement resolving both Debtor’s motion to extend the stay and FSB’s motion for relief from stay. Dkt. No. 27. Debtor provided in-rem relief for FSB and FSB, in turn, had agreed it would not conduct a foreclosure sale until at least March 18, 2021 if Debtor continued to make all post-petition payments that came due. Id. Debtor alleged that parties will submit a stipulation agreement, but one has not been filed.
In the alternative, Debtor stated that it has shown that his bankruptcy was filed in good faith: (1) Debtor has filed a plan pledging to sell the Property within a reasonable period of time to pay FSB in full, while also paying regular post-petition installment payments and arrears, and (2) there is significant equity cushion protection FSB’s secured claim. Id.
The Court is inclined to grant relief in accordance with the relief from stay stipulation filed on June 29, 2020.
APPEARANCES REQUIRED.
Debtor(s):
Jose Omar Zapata Represented By
11:00 AM
Movant(s):
J. Luke Hendrix
Wilmington Savings Fund Society, Represented By
James F Lewin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
Docket 10
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Mechanics Bank claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Lien and Title Information, NADA Guides Value Report, and Debtors’ intent to surrender the vehicle, Mechanics Bank has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no
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equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Mechanics Bank has met its burden to show that Debtors have no equity in the property.
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Debtors have not responded to this motion, and they indicated their intent to surrender the vehicle. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(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):
Juan Carlos Sanchez Gazcon Represented By Giovanna M Gallo
Joint Debtor(s):
Rosa Elva Bustos Aguilar Represented By Giovanna M Gallo
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: AGUSTIN NAPOLION JOYA AND DORA MARIA JOYA
EH
Docket 19
Service: Shortened Notice – Proper Opposition: None
The Court has reviewed the motion. On June 4, 2020 (hereinafter "Petition Date"), Agustin Napolion Joya (hereinafter "Debtor") and Dora Maria Joya (hereinafter "Joint Debtor," collectively "Debtors") filed a Chapter 13 voluntary petition. Pursuant to 11
U.S.C. § 362(c)(3), the automatic stay in respect to the Debtors expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtors had one prior Chapter 13 voluntary petition, case number 6:17-bk-20121-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, Nationstar Mortgage, LLC doing business as Mr. Cooper filed a motion from relief of stay in regard to the property located at 1365 Riverstone Court, Hemet, California 92545. Debtors have served Select Portfolio Servicing, which is the firm Nationstar Mortgage transferred their claim to, pursuant to the Court’s Miscellaneous Instructions.
Debtors have filed this motion to continue the stay pursuant to 11. U.S.C § 362(c)(3) (B). Debtors’ Prior Case was dismissed because of delinquent payments totaling
$4,002.00. Debtors claim that both of their freightliner work trucks broke down at the
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same time, and because of the lose of income due to the trucks breaking down and the costly repair, Debtors claim they were unable to pay their monthly plan payments.
Debtors do not anticipate any having any issues in this present case.
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtors have not provided detailed, competent, evidence sufficient to rebut the presumption of bad faith. Specifically, there is no detail nor supporting evidence as to the cost of repairing the trucks, the revenue loss from the Trucks being out of commission, and whether the trucks are both now repaired and operational.
Debtors’ statements, lacking detail, are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith.
APPEARANCES REQUIRED.
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
Joint Debtor(s):
Dora Maria Joya Represented By
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Movant(s):
Daniel King
Agustin Napolion Joya Represented By Daniel King
Dora Maria Joya Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CYNTHIA MILLER
EH
Docket 12
Service: Proper Opposition: None
The Court has reviewed the motion. On June 6, 2020 (hereinafter "Petition Date"), Cynthia Miller (hereinafter "Debtor") filed a Chapter 13 voluntary petition. Pursuant to 11 U.S.C. § 362(c)(3), the automatic stay in respect to the Debtor expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtor had one prior Chapter 13 voluntary petition, case number 6:18-bk-12822-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, Wells Fargo Bank, N.A. filed a motion from relief of stay in regard to the property located at 15036 Daffodil Circle, Fontan, California 92336. Debtor has failed to serve Wells Fargo’s Counsel as required per Court’s service procedures.
Debtor has filed this motion to continue the stay pursuant to 11. U.S.C § 362(c)(3)(B). Debtor’s Prior Case was dismissed because of a delinquency in plan payments. Debtor was required to repay a debt to a governmental entity for government assistance received, causing a temporary disruption of her finances and leading to a default in her Prior Case’ plan payment. Debtor also states that she has over $800.00 in current
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disposable income and her plan payment will not exceed $450.00 per month.
To overcome the presumption of this case not being filed in good faith, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtors have not provided detailed, competent, evidence sufficient to rebut the presumption of bad faith. Specifically, there is no detail nor supporting evidence of what government entity required Debtor to make a repayment, what services was received, or how much was the Debtor told to repay.
Debtor’s statements, lacking detail, are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith in addition to the same issue. The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Cynthia Miller Represented By Richard L Barrett
Movant(s):
Cynthia Miller Represented By Richard L Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
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MOVANT: JOHN ANTHONY PERCELL
EH
Docket 6
Service: Proper—shortened notice Opposition: None
The Court has reviewed the motion, and the service was made on shortened notice. Debtor had two Chapter 13 voluntary petitions, case number 16:19-bk-20835-MH ("Prior First Case") and case number 20-bk-12183-MH ("Prior Second Case"), pending within one year. Pursuant to 11 U.S.C. § 362(c)(4)(D)(i), a case is presumed to be filed not in good faith as to all creditors if "2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period…"
A debtor can rebuttal this presumption by clear and convincing evidence. 3 Collier on Bankruptcy ¶ 362.06 (Richard Levin & Henry J. Sommer eds., 16th ed.). "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
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Debtor declared that the Prior First Case was dismissed due to non-compliance prior to confirmation when he did not provide proof of payments and documents requested by his attorney at the time. Dkt. No. 6, Decl. of John Anthony Percell. The Second Prior Case was dismissed because Debtor failed to make a plan payment in time. Id. Debtor alleged he placed the wrong case number on the check, which he submitted on time, causing it to get rejected. Id.
Debtor having presented sufficient evidence to rebut the presumption the case was filed in bad faith, the Court will 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):
John Anthony Percell Represented By Andrew Nguyen
Movant(s):
John Anthony Percell Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
U.S.C. § 363(b) and (f); (2) Rejecting or Assuming and Assigning Certain Executory Contracts and Unexpired Leases; (3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good-Faith Purchasers Pursuant to 11
U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
EH
Docket 608
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente
12:00 PM
Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
Docket 110
6/30/20
BACKGROUND:
On December 30, 2019 (hereinafter the "Petition Date"), Sunyeah Group Corporation, a California Corporation (hereinafter "SGC"), filed a Chapter 11 voluntary petition. SGC is operating its business, managing its affairs, and administering its estate as a debtor-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108. SGC is a manufacturer of, among other things, annealed, customized, and tempered glass. Dkt. No. 10, Pg. 2.
Kippartners, L.P. (hereinafter "KLP") is the owner of the industrial building located at 930 Wanamaker Avenue, Ontario, California (hereinafter the "Industrial Building"). Claim 14-1. By its motion, KLP seeks conversion of Debtor’s case to Chapter 7.
ANALYSIS:
"On request of a party in interest…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…" 11 U.S.C. § 1112(b)(1) (emphasis added). Kippartners has standing as a creditor to initiate such a motion. 7 Collier on Bankruptcy ¶ 112.04[1] (Richard Levin & Henry J. Sommer eds., 16th ed.) (stating that a party in interest set forth in 11 U.S.C. 1109 includes "creditors, a creditors’ committee, equity security holder and an equity security holder
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committee, and indenture trustee, as well as a trustee and the debtor.").
Under 11 U.S.C. § 1112(b)(4), the Bankruptcy Code contains sixteen examples of what constitute cause for conversion or dismissal. The list is not exhaustive. In re Ameribuild Constr. Mgmt., Inc., 399 B.R. 129, 131 n. 3 (Bankr. S.D.N.Y. 2009) (stating that "the list contained in 1112(b) is not exhaustive. The Court will be able to consider other factors as they arise, and to use its equitable powers to reach an appropriate result in individual cases.").
Furthermore, the standard to prove "cause" is by a preponderance of the evidence. In re Corona Care Convalescent Corp., 527 B.R. 379, 382 (Bankr. C.D. Cal. 2015). "The definition of a preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that that the fact sought to be proved is more probable than not." In re Cooper, 2012 Bankr. Lexis 6119, *6 (Bankr. E. D. Cal. 2012).
Here the Court is inclined to find "cause" exists to convert the Debtor’s case to one under Chapter 7 pursuant to 11 U.S.C. § 1112(b)(1) under a totality analysis for the following primary reasons, explained in greater detail below:
Debtor has no business operations (on petition date or currently) and no possibility of future business operations;
Debtor has no employees (on petition date or currently);
Debtor’s assets on petition date were comprised of only personal property located at debtor’s former business premises, and allegedly certain accounts receivable, and Debtor’s assets currently consist of approximately $700,000 in cash and allegedly certain accounts receivable (with significant amounts of administrative expenses having already been accrued by Debtor’s counsel and likely KLP);
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Liens in favor of Debtor’s principals were perfected 12 days before the
petition date but not set aside by current principals, notwithstanding request by Movant, until 6 months after the case was filed and 4 days after Movant filed its motion to dismiss; and
The principals’ liens were not listed in the Statement of Financial Affairs, notwithstanding that Debtor was clearly aware of them when the SOFA was filed, having specifically referenced them in a prior stipulation for use of cash collateral.
Given this conclusion, before turning to Debtor’s burden in opposing the motion and setting aside the issues regarding the principals, the Court first notes that one key practical question it is faced with in considering the motion is what alternative provides the most cost effective means of resolving the case: having a chapter 7 trustee administer the case with an additional layer of administrative expenses, or having Debtor’s counsel’s prosecute the case to conclusion, with an associated increase in counsel's fees and costs. It is impossible to conclusively evaluate the greater costs on this (or generally any) record, but the Court believes strongly that a disclosure statement and plan process will certainly be more expensive than a chapter 7 distribution, even net of Trustee counsel fees incurred getting up to speed, and given the facts above the Court cannot help but believe that there was no need for the greater expenses of a chapter 11 case on the petition date, or at this point, other than to protect the principals’ interests – protection that would be lost in a Chapter 7. Stated otherwise, it is this combination of factors: lack of confidence, based on principals' actions, in their ability to direct Debtor’s actions for the benefit of creditors, a relatively small and finite amount of estate assets shrinking daily by increasing administrative expenses, no hope of rehabilitation, and what the Court believes will be greater expenses continuing in a chapter 11 plan process where there is no need for one, that serves as "cause" to convert.
Here simply no revival of the Debtor’s business, much less restructuring, will occur. This is simply now a garden-variety situation of mostly liquidated assets
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needing to marshaled by a trustee and distributed to creditors, with some di minimis ancillary activity, such as liquidating accounts receivable and resolving the asset ownership dispute, that can easily be performed by a trustee. Even the liquidation of assets earlier in the case was simply an sale of equipment, not any kind of ongoing business sale usually contemplated in the Chapter 11 liquidation.
Finding cause to convert, the Court turns to the Debtor’s burden to demonstrate unusual circumstances showing that conversion is not in the best interest of creditors or the estate. Ultimately, the Court is not persuaded that any unusual circumstances exist here.
In particular, there is no extensive learning curve for a Chapter 7 trustee in this case. There is no evidence that collecting accounts receivable and distributing cash in this case will be complicated. Plus the issues regarding asset ownership do not appear particularly extensive or complex. As an aside, the court approval of the cash collateral stipulation that includes the date that the principals’ lien recordation does not somehow bless or immunize the principals of their failure to disclose. It is simply not the Court’s burden to scrutinize cash collateral stipulations such as this for issues such as whether alleged liens are valid, much less preferential.
There appears to be some confusion in the briefing as to whether conversion was requested on the basis that the case was filed in bad faith, or on bad faith that exists currently, or otherwise. Ultimately, as noted above and otherwise for reasons stated in the moving papers, the Court simply finds uncontroverted cause to grant the motion, noting that a number of the elements in support of cause also serve as factors in a finding of bad faith.
As to the evidentiary objections filed by Debtor, the Court sustains all objections based on relevancy, except as to the last statement, which objection is overruled.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
From: 3/31/20, 4/21/20, 5/26/20 EH
Docket 64
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Robert Lee Johnson Jr Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 16
- NONE LISTED -
Debtor(s):
Melissa Rosalyn Aguayo Represented By Daniel King
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
David Walter Sterling Represented By James P Doan
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
Docket 54
- NONE LISTED -
Debtor(s):
Blanca Aguirre Pro Se
Movant(s):
Blanca Aguirre Pro Se
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Kevin T Lafky
11:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Nicki Rae Schaeffer Represented By Jenny L Doling
Movant(s):
Nicki Rae Schaeffer Represented By Jenny L Doling Jenny L Doling
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Juan R. Garcia Represented By Keith Q Nguyen
Joint Debtor(s):
Lorena I. Garcia Represented By Keith Q Nguyen
Movant(s):
Juan R. Garcia Represented By Keith Q Nguyen Keith Q Nguyen Keith Q Nguyen
Lorena I. Garcia Represented By Keith Q Nguyen Keith Q Nguyen
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 163
Michelle Meredith ("Debtor") filed a voluntary chapter 7 petition on May 19, 2017. Originally, the Schedule A & B filed by Debtor did not list any assets, despite identifying three secured creditors. Three days later, Debtor filed amended schedules disclosing an interest in real property at 102 Tesori Drive, Palm Desert, CA 92211 (the "Palm Desert Property"), on which she claimed a $175,000 disability exemption. In addition to a variety of other assets, Debtor also identified a potential inheritance from her grandparents; it was later ascertained that this interest entitled Debtor to partial proceeds from the sale of two real properties and three stock accounts.
One of the trust properties (the "West Covina Property") was sold on June 21, 2017 and Debtor received $84,373.02 in proceeds. On August 11, 2017, Trustee filed a notice of assets. On September 13, 2017, Trustee filed a motion for turnover of property, seeking postpetition distributions of trust assets. Debtor did not oppose the motion, and, on October 10, 2017, the Court entered an order directing Debtor to: (1) turn over $84,373.02 in proceeds attributable to the sale of trust property; and (2) timely cooperate with future related requests. Debtor, however, had already spent the proceeds from the sale of the West Covina Property and was unable to turn them over to the Trustee.
Three days after the Court entered its order, Debtor filed a pro se motion to reconsider the turnover order, alleging a variety of instances of malpractice committed by her attorney. The Court notes that Debtor’s attorney, Patricia Ashcraft, was sued by the UST in a different
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bankruptcy case less than two months later, with the suit resulting in Ashcraft being indefinitely suspended from practicing in this Court. On October 25, 2017, the Court denied Debtor’s motion for a variety of procedural defects. The day before the hearing, Debtor had retained new counsel and began cooperating with Trustee. On October 11, 2017, Trustee received $51,093.57 from Platinum Escrow for the sale of the second trust property (the "Big Bear Property"). On December 20, 2017, Trustee also received $53,336.14 for Debtor’s share of proceeds from the sale of the trust stock accounts.
On April 26, 2018, Trustee filed a motion to approve a compromise with Debtor related to her compliance with the turnover order. The compromise motion operated as something of a global compromise, providing for the bankruptcy estate to receive a fixed amount of money ($140k), while allowing Debtor to retain all property interests in excess of $140k. When reviewing compromise motions, the Court requires two fundamental pieces of evidence: (1) the value of the estate interest’s being compromised; and (2) the value received by the estate. In this case, the compromise motion contained no evidence or description whatsoever regarding the value of the estate’s interest being compromised. The Court often relaxes this requirement upon an assertion that the compromise will result in a surplus estate; the compromise submitted by Trustee asserted that the settlement would "pay all or substantially all allowed claims and administrative expenses in full." [Dkt. No. 112, pg. 6, lines 26-27].
The terms of the compromise provided for Trustee to retain the $104,429.14 in postpetition trust assets described above, and for Debtor to make a payment of $35,570.86 within ten business days of the entry of the order. In the event of default under the settlement agreement, Trustee was permitted to sell the Palm Desert Property with the estate receiving funds in an amount to bring total estate funds to $140,000. On May 21, 2018, the Court granted the compromise motion.
Debtor was unable to make the lump-sum payment and Trustee proceeded to market the Palm Desert Property. On October 1, 2018, the senior lienholder filed a motion for relief from the automatic stay related to the Palm Desert Property, which Trustee opposed. On November 28, 2018, Trustee filed a motion to sell the Palm Desert Property, which was granted by order entered December 20, 2018.
After Trustee’s counsel and accountant filed their fee applications, a stipulation was reached with the UST for an aggregate reduction in administrative claims in the amount of $7,213.21.
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Recitals G & H of that stipulation, filed as docket number 161, stated the following:
G. The U.S. Trustee raised concerns relating to the proposed distribution to unsecured creditors in the Trustee’s Final Report as compared with earlier stated projections noticed to creditors during the bankruptcy proceedings. ("Potential Objection").
H. The Trustee, Counsel, and the Accounting Firm contend that unforeseen events, including a late-filed claim and additional administrative fees incurred by the estate resulting from the Debtor’s settlement defaults diluted the anticipated divided to unsecured creditors.
The Court has significant concerns with the distribution to unsecured creditors being reduced from 100% (or substantially 100%) to 25%. Nor does the contention raised above adequately address this change. First of all, there is no late-filed claim. Second of all, as a matter of law, a late-filed claim would never affect the dividend paid on timely-filed claims pursuant to the distribution scheme contained in 11 U.S.C. § 726. Instead, it would appear that additional administrative fees caused the distribution to unsecured creditors to be reduced from an anticipated 100% down to 25%.
The Court is aware that the most effective administration of the estate would have seen Debtor make the payment contemplated in the compromise motion in a timely fashion. Nevertheless, Debtor’s default does not preclude the Court from analyzing the effectiveness of the alternative method adopted. The sale of the Palm Desert Property, pursuant to the compromise motion, could only have netted the estate a maximum of $35,570.86. Absent that sale, Trustee’s fees in this case would have been $8,471.46 ($20,414 less than the amount currently requested). And, at the time the compromise motion was approved, the fees and expenses of Trustee’s counsel appear to have totaled $59,548.29 ($26,343.62 less than the amount now requested). Therefore, the administrative expenses of Trustee and Trustee’s counsel incurred after May 21, 2018, even after the stipulated reduction, significantly exceed the maximum amount the estate could have recovered pursuant to the compromise.
The Court also has more general issues with the billing of Trustee’s counsel. For example:
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219 hours were billed at an attorney rated compared to only 10.3 hours billed at a paralegal rate. This ratio generally reflects a tendency to bill at a high rate. For example, a named partner, who did not meaningfully work on the case, was sent to Riverside to attend an unopposed sale motion, and associates were used to do significant work that could be characterized as paralegal work.
Many of the billing entries appear excessive given the extent of the work required to
complete the task. For example, in the context of the motion for turnover, a relatively detailed motion was compiled, then, despite no opposition being filed by Debtor, Trustee filed a late supplemental declaration. Prior to the hearing, the Court posted a tentative ruling which granted the motion in its entirety, and counsel’s billing records show that it had a named partner, a senior counsel, and an associate each review the tentative ruling (at 0.4, 0.3, and 0.5 hours, respectively). After Debtor filed a pro se motion for reconsideration, which was legally and procedurally defective on its face, counsel submitted an extensive opposition that resulted in approximately twelve billable hours.
APPEARANCES REQUIRED.
Debtor(s):
Michelle Meredith Pro Se
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Meghann A Triplett
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EH
Docket 37
Service: Proper Opposition: None
Based upon the Court's review of the supplemental declaration filed on June 22, 2020, as docket number 42, notice appearing proper and no opposition having been filed, the Court is inclined to GRANT the motion, APPROVING the compromise.
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 Fabiola Marroquin Represented By Mark A Mellor
Movant(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond Rafael R Garcia-Salgado
Trustee(s):
Karl T Anderson (TR) Represented By
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Robert P Goe Thomas J Eastmond
Rafael R Garcia-Salgado
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Also #8 EH
Docket 33
On September 14, 2018, Maria Marroquin filed a Chapter 7 voluntary petition. Schedule A did not list any real property. On November 15, 2018, Debtor amended her schedules, listing certain real property located at 1816 Montara Way, San Jacinto, CA 92583 (the "Property"). The amended schedules stated: "Property belongs to spouse as his sole and separate property. In an abundance of caution, if Trustee determines community interest exists, debtor claims exemption § 704.730(2)." [Dkt. No. 11]. On Schedule C, Debtor stated that the value of her interest in the Property was $0, and she claimed an exemption of $0 pursuant to § 704.730. On December 26, 2018, Debtor obtained her discharge.
On March 19, 2019, Trustee filed a notice of assets. On September 25, 2019, Trustee filed a complaint (the "Complaint") against Roderico Marroquin ("Defendant") for:
avoidance and recovery of constructively fraudulent transfers; (2) avoidance and recovery of intentional fraudulent transfers; (3) avoidance and recovery of property of the bankruptcy estate; and (4) temporary restraining order and preliminary injunction. The Complaint includes an assertion that Debtor gifted her joint tenancy interest in the
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Property to Roderico Marroquin on July 5, 2016. On November 8, 2019, Defendant filed an answer to the Complaint.
On November 15, 2019, Trustee filed an objection to Debtor’s homestead exemption. Trustee argues that either that (a) Debtor has no ownership interest in the Property; and (b) Debtor’s interest in the Property would only arise if Trustee avoided the fraudulent transfer to Defendant.
There are multiple clear issues with the instant motion. First, the Court notes that the operative Schedule C identifies an exemption amount of $0. As a result, from a practical perspective, Debtor’s claimed exemption does not actually exempt any dollar amount of interest in the Property. Additionally, the Court notes that the schedules appear to state that Debtor is only exempting the Property conditionally -- on the condition that Trustee determines a community property interest exists. Here, it does not appear that Trustee has determined that a community property interest exists, the condition precedent to claim the exemption has not occurred.
Nevertheless, the Court acknowledges that a successful objection to homestead exemption would be relevant to the extent that Debtor attempts to amend Schedule C in the future. Trustee’s lone legal argument in support of the objection to the homestead exemption is that Debtor is precluded from claiming an exemption pursuant to 11 U.S.C. § 522(g). The problem, however, is that Trustee has merely filed a complaint to recover the Property, but that action has not been completed and it appears that Defendant intends to defend himself.
Trustee’s motion asserts the following:
For the purposes of § 522(g), the term ‘recovers’ is liberally construed.
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It does not require a trustee to initiate or complete a formal avoidance action under one of the enumerated code sections. Rather, a trustee may ‘recover’ property by merely using the threat of avoidance powers to induce a debtor or transferee to return the property to the estate.
(citation, emphasis, and quotation omitted).
The above quoted legal analysis is wholly inapplicable to the instant situation. The Court agrees that is logical to consider a trustee to have "recovered" property if the trustee induced the return of that property. Here, that has not happened. Trustee filed a complaint, Defendant filed an answer, the adversary action is pending, and the Property has not been returned. Quite simply, there has been no recovery of property and, therefore, reference to § 522(g) appears premature.
The Court is inclined to DENY the motion as premature.
APPEARANCES REQUIRED.
Debtor(s):
Maria Fabiola Marroquin Represented By Mark A Mellor
Movant(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
Trustee(s):
Rafael R Garcia-Salgado
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond Rafael R Garcia-Salgado
11:00 AM
Also #10 EH
Docket 104
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Also #9 EH
Docket 102
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Adv#: 6:19-01050 Baker et al v. Mount
EH
Docket 75
- NONE LISTED -
Debtor(s):
Thomas Mount Represented By Christopher Hewitt
Defendant(s):
Thomas Mount Represented By Donald W Reid
Movant(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
Plaintiff(s):
Jonathan Baker Represented By Baruch C Cohen
Baker Entertainment Group Represented By Baruch C Cohen
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:20-01032 Whitmore v. Tsirtsis et al
Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(13 (Recovery of money/property - 548 fraudulent transfer)) (Marchisotto, Michelle)
From: 5/27/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
James Dimitri Tsirtsis Represented By Donald W Sieveke
Defendant(s):
James Dimitri Tsirtsis Pro Se
Pota N. Tsirtsis Represented By Brad A Mokri
Christos Minoudis Represented By Brad A Mokri
Maria Minoudis Represented By Brad A Mokri
Angelo D. Tsirtsis Represented By Brad A Mokri
2:00 PM
Plaintiff(s):
Robert S. Whitmore Represented By
Michelle A Marchisotto
Trustee(s):
Robert Whitmore (TR) Represented By
Michelle A Marchisotto
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, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20, 4/8/20, 4/29/20
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. Pro Se
Natalia V Knoch Pro Se
Steven B Knoch Pro Se
Stacy Winn Represented By
Douglas A Plazak
2:00 PM
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#: 6:20-01047 Karl T. Anderson, Chapter 7 Trustee v. Olaya et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Karin Olaya Represented By
Edward T Weber
Defendant(s):
Karin Giselle Olaya Represented By Edward T Weber
Rosemary Franco Pro Se
Frank Howard Eggleston Pro Se
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
Misty A Perry Isaacson
2:00 PM
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
2:00 PM
Adv#: 6:20-01048 United States Trustee for Region 16 v. Swedan et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Hasan Elmehrek Represented By Keith Q Nguyen
Defendant(s):
Nagla Swedan Pro Se
Hasan Elmehrek Pro Se
Joint Debtor(s):
Nagla Swedan Represented By Keith Q Nguyen
Plaintiff(s):
United States Trustee for Region 16 Represented By
Everett L Green
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:20-01049 SchoolsFirst Federal Credit Union v. Bonto
EH
Docket 1
- NONE LISTED -
Debtor(s):
Flory Cea Bonto Represented By Christopher J Langley
Defendant(s):
Flory Cea Bonto Represented By Michael Smith
Joint Debtor(s):
Jeffrey B. Bonto Represented By Christopher J Langley
Plaintiff(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20, 4/22/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
Also #19 & #20 EH
Docket 74
- NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 6/10/20 Also #18 & #20 EH
Docket 69
On February 7, 2018, Vance Johnson ("Defendant") filed a Chapter 11 voluntary petition. On July 3, 2018, Defendant’s case was converted to Chapter 7.
On May 7, 2018, Bankers Health Group, LLC ("Plaintiff") filed a non-dischargeability complaint against Defendant pursuant to 11 U.S.C. § 523(a)(2)(B), (a)(4), and (a)(6). On June 7, 2018, Defendant filed his answer. After the initial status conference, the Court entered a scheduling order on July 17, 2018. Subsequently, the parties stipulated to a continuance of the status conference, and an extension of certain dates in the scheduling order, on three occasions.
On June 24, 2019, Plaintiff filed a motion for summary judgment, and amended the motion four days later. On July 31, 2019, Defendant filed his opposition. On August
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26, 2019, the Court denied Plaintiff’s motion for summary judgment.
The parties then stipulated to continue the status conference on three further occasions. On April 28, 2020, the Court granted Plaintiff’s unopposed motion to extend the discovery deadline until June 30, 2020.
On April 13, 2020, Plaintiff filed a motion for leave to file an amended complaint to add a cause of action under 11 U.S.C. § 523(a)(2)(A). On April 29, 2020, Defendant filed an opposition. The Court denied the motion without prejudice on May 19, 2020.
On May 19, 2020, Plaintiff filed a motion to extend the discovery deadline. On May 27, 2020, Defendant filed an opposition. On June 3, 2020, Plaintiff filed its reply.
Plaintiff asserts that "Defendant has been slow to produce at best, or at worst, evasive." [Dkt. No. 69, pg. 6]. Defendant’s opposition primarily contends that an extension is unnecessary because Defendant will respond to the outstanding discovery by the deadline and Plaintiff will receive other responses from Pacific Premier Bank and Wells Fargo Bank. The final paragraph of Plaintiff’s reply contains the following:
Plaintiff requests this discovery extension out of an abundance of caution. If Defendant continues to be unresponsive, Plaintiff will file a motion to compel discovery on June 4, 2020. At that time, Defendant will request either an additional hearing date in advance of June 30, 2020 or to have the motion heard on shortened time. If neither of the above options are acceptable to the Court, this motion provides an additional pathway to preserve Plaintiff’s rights to discovery.
The Court also notes that Plaintiff has filed a motion to compel discovery production and for sanctions, which is currently sent for hearing on July 1, 2020.
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As noted by Plaintiff, it is well-established that the primary consideration for the Court when presented with a request to modify a scheduling order is the moving party’s diligence. See, e.g.. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
While this adversary proceeding was commenced more than two years, the parties have sought and obtained many continuances and the actual litigation activity in this case has largely been conducted outside of the Court’s view. Defendant offers the assertion that "[t]his case has not been diligently prosecuted by Plaintiff" [Dkt. No. 72, pg. 3], but does not provide any detail or evidence to support the assertion.
Nevertheless, given the extensive delays in this case, the Court intends to closely monitor the proceeding. Given the pending discovery motion calendared for July 1, 2020, and noting that the Court can extend its discovery deadline after the expiration of the deadline, the Court is inclined to CONTINUE this matter to July 1, 2020, for the discovery process to more fully unfold and for the record to develop further.
Tentative Ruling:
Parties to apprise the Court of the status of discovery.
APPEARANCES REQUIRED.
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20, 4/15/20
Also #18 & #19 EH
Docket 1
4/15/20
Opposition: None Service: Proper
Pursuant to the stipulation agreement between Bankers Health Care Group, LLC, and Vance Zachary Johnson, the Court GRANTS this stipulation to continue Status Conference to July 1, 2020. A Status Report is due on June 24, 2020.
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):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
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) Represented By Monica Y Kim
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
EH
Docket 12
On January 23, 2019, Timothy & Esmeralda Aitken ("Debtors") filed a pro se Chapter 7 voluntary petition. On April 19, 2019, Trustee filed a notice of assets. On May 1, 2019, Debtors filed an amended Schedule C claiming as exempt equity in real property located at 6919 Elmwood Rd., San Bernardino, CA (the "Property") transferred in 2017. On February 28, 2020, Trustee filed a motion to extent time to objection to Debtors’ claimed exemption. On April 7, 2020, the Court entered an order extending the deadline to object to Debtors’ claimed exemption until October 3, 2020.
On March 3, 2020, Trustee filed a complaint against Alicia Aitken ("Defendant"), Debtors’ daughter, for avoidance and recovery of fraudulent transfer. On April 14, 2020, default was entered against Defendant. On June 9, 2020, Trustee filed a motion for default judgment.
Trustee’s complaint relates to the sale of the Property from Debtors to Defendant on
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August 31, 2017. Trustee notes that the settlement statement for the sale includes a notation for a gift of equity in the amount of $29,310. It appears from the information provided to the Court that the sale involved Defendant taking out a loan in the amount of $195,400 and paying off the existing mortgage on the Property as well as all costs of sale. After payment of those items, it appears that Defendant retained $29,310 of the remaining $32,551.56 in loan proceeds, with the balance going to Debtors. Trustee then sued Defendant to recover the $29,310.
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
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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, Defendant was served at the Property. While Defendant clearly purchased the Property, the Court notes that Debtors listed the Property as their address on the bankruptcy petition, and also listed a housing expense on Schedule J, so it appears Defendant may have purchased the Property and began renting it out to Debtors.
Trustee to apprise the Court of its attempt to determine a valid service address for Defendant.
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. A general problem with all five causes of action is Trustee’s characterization of the "transfer" to be avoided. Trustee has defined the subject transfer as the gift of equity. In so doing, Trustee has bifurcated the sale at issue into two distinct transactions: (1) a sale of the Property for
$195,400; and (2) a gift from Debtors to Defendant in the amount of $29,310. This would appear to be a distortion of the events which actually occurred, specifically that Defendant took out a loan for $195,400 and purchased the Property for $166,090, retaining the remaining loan proceeds.
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Therefore, the operative legal question becomes – to what extent can a transfer be subdivided into various components? The Court notes Trustee’s argument implicitly requires the Court to assume that the $195,400 price of the Property constitutes the fair market value of the Property, but the Court does not have any evidence to support that conclusion. Even accepting that assumption, Trustee’s proposed bifurcation of the sale arrangement results in a fundamental change in the statutory language, for it would force this Court to replace "reasonably equivalent value" with "equivalent value." For in any sale in which the purchase price was less than the fair market value of the property, the sale could be construed as a sale of the property for the fair market value and an accompanying gift of equity; in other words, every transfer in which a debtor received less than "equivalent value" would be subject to attack.1
Therefore, in accordance with the reasoning above and the Court’s understanding of the terms of the sale (reproduced in the final paragraph of the background section), the Court is inclined to consider the transfer at issue to have been the sale of the Property for $166,010. Trustee has not provided any legal argument that would support a conclusion that the sale of the Property for $166,010 constitutes a fraudulent transfer.
The Court is inclined to CONTINUE the matter for Trustee to file a supplemental brief responding to the issues raised above.
APPEARANCES REQUIRED.
Debtor(s):
Timothy Mark Aitken Pro Se
2:00 PM
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Howard Grobstein Represented By Larry D Simons
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20, 6/10/20 Also #21
EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
EH
Docket 18
Between May 2015 and May 2017, Nathaniel James Cardiel ("Cardiel") was employed by O’Gara Coach Company, LLC ("OGCC") at its Beverly Hills, California dealership. OGCC is in the business of selling new and used high-end luxury automobiles. Between April 2017 and February 2018, Cardiel stole a 2009 Rolls- Royce Phantom Coupe ("2009 Rolls-Royce"), and a 2016 McLaren 675 LT ("2016 McLaren").
On February 9, 2018, the Beverly Hills Police Department located the two vehicles at Cardiel’s residence. On April 10, 2018, Cardiel was charged criminally in the Los Angeles Superior Court for the theft of the two vehicles. On November 13, 2018, Cardiel entered into a felony plea agreement in Los Angeles Superior Court whereby Cardiel agreed to pay $105,000.00 restitution.
On April 24, 2018, OGCC separately filed a complaint against Cardiel among others in Riverside Superior Court.
On March 1, 2019, OGCC’s state court counsel deposed Cardiel wherein Cardiel admitted that he stole the two cars from OGCC and revealed that he was consulting with some lawyers about bankruptcy. Specifically, from the excerpt of the deposition, in page 58, lines 23-25, in response to the question, "You stole the car?" Cardiel replied, "I did." In page 81, lines 5-12, in response to the questions, "So you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you like. You use bolt cutters that you bought the day before to cut the lock on the gate?
You open the gate and then you drive the car off the lot", Cardiel replied "Correct." In page 75, lines 15-21, in response to the question, "did you go to the dealership with
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the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In page 124, lines 14-20, Cardiel revealed, "I had no way of paying my credit card companies…actually right now I’m consulting some lawyers about bankruptcy. So I’m not in a good place credit-wise, as you probably saw by my credit report."
OGCC’s case filed in Riverside Superior Court is now pending.
On March 20, 2019, Cardiel filed a Chapter 7 bankruptcy without counsel. Cardiel failed to fully disclose his prepetition financial status in the schedules. Specifically, Cardiel did not disclose 1) OGCC’s pending litigation against him; 2) the pending Los Angeles Superior Court Criminal Action against him and the corresponding
$105,000.00 restitution and his plea agreement; 3) Cardiel’s ownership interest in the corporate entity, Day Dream Drive; 4) bank accounts maintained at California Coast Credit Union; and 5) 2017 Financial Statement submitted to California Coast Credit Union.
On July 1, 2019, Cardiel received his Chapter 7 discharge and on July 2, 2019 Cardiel’s Chapter 7 bankruptcy case was closed.
On or about August 23, 2019, OGCC allegedly became aware of Cardiel’s Chapter 7 case and moved to reopen the case. On September 17, 2019, Cardiel’s Chapter 7 Bankruptcy Case was reopened.
On October 4, 2019, OGCC filed a complaint to commence adversary proceeding in this Court, alleging that Cardiel’s discharge should be revoked under 11 U.S.C § 727(a) and OGCC’s claim should be determined to be non-dischargeable under 11
U.S.C §523(a)(2) and §523(a)(6). On December 2, 2019, Cardiel filed an answer to the complaint.
On May 14, 2020, OGCC filed a motion for summary judgment, arguing there were no disputed material facts and that Cardiel’s discharge should be revoked under 11 U.S.C §727(d), and that OGCC’s claim should be determined to be non- dischargeable under 11 U.S.C §523(a)(6).
Specifically, for the claim under §727(d), OGCC argues that Cardiel’s omission of contained information noted above from his schedules suffices the requirement under
§727(d) given that 1) OGCC’s alleged entitlement to over $100,000 restitution is material because it constitutes over 60% of Cardiel’s total claims, and 2) Cardiel’s
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omission was knowingly made as Cardiel filed the bankruptcy only three weeks after his March deposition along with his recent state court criminal charge.
As to the claim under §523(a)(6), OGCC alleges that Cardiel’s acts were willful and malicious because Cardiel had the motive to inflict injury by stealing and concealing the cars as evidenced by the March deposition, and that caused economic injury totaling $551,295.82.
According to OGCC’s damage calculation formula, with respect to the 2009 Rolls-Royce, the loss of use is $5,000.00; the loss in value re disclose theft to subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (10,992 miles at $2.50 per mile) is $27,480.00; restore vehicle to factory standards is $36,332.46; the subtotal is $103,812.46. As to the 2016 McLaren, the loss in value re having to disclose the theft to a subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (100 miles at $2.50 per mile) is $250; the subtotal is $35,250.00. The whole amount of car damages is then further trebled pursuant to California Penal Code §496. In addition, the attorney fee, which should also be included to the total amount pursuant to §496, would be
$134,108.44.
On June 17, 2020, Cardiel filed an opposition to motion for summary judgment along with his evidentiary objections to the declaration of Juan Hernandez. In the opposition, Cardiel primarily raises disputes regarding damages calculation and amount of the damages in each category. On June 24, OGCC filed a reply to the opposition, arguing that Juan Hernandez, working as a corporate controller at OGCC, is capable to provide reliable amount of damages. In addition, OGCC also filed an evidentiary objection to the declaration of Nathaniel James Cardiel.
As a preliminary matter, the Court evaluates the evidentiary objections submitted by both parties.
First, as to the evidentiary objections by Defendant Cardiel to Juan Hernandez declaration, the Court:
OVERRULES the evidentiary objection as to ¶ 7 based on hearsay. Defendant assumes, but it is not clear from the declaration, that amounts are reflected in a
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business record.
SUSTAINS the evidentiary objection as to ¶ 7 based on lack of foundation.
There is no foundation provided for Declarant’s expertise to assess the damages, or for the damage amounts themselves.
The Court does not address remainder of Cardiel’s evidentiary objections as
premature pending resolution of section 496 issues.
OGCC made the evidentiary objections to the declaration of Nathaniel James Cardiel. The Court:
OVERRULES objection based on lack of personal knowledge. Perhaps an appropriate objection would be improper legal argument, or lack of foundation, but Declarant is NOT testifying as to what Plaintiff believed (note, Plaintiff is not a person). Declarant is instead testifying as to what Declarant believes.
OVERRULES objection based on Expert Witness. Declarant is not testifying as an expert as to any alleged fact. An appropriate objection would be improper legal argument.
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. Fed. R. Civ. P. 56(c) (made applicable to adversary proceedings by Fed. R. Bankr. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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. Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137
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(9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Section 523(a)(6) provides that: "(a) A discharge under 727 ... of this title does not discharge an individual debtor from any debt - ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity." Whether a particular debt is for willful and malicious injury by the debtor to another or the property of another under § 523(a)(6) requires application of a two-pronged test to the conduct giving rise to the injury. In other words, the creditor must prove that the debtor's conduct in causing the injuries was both willful and malicious. Barboza v.
New Form, Inc. (In re Barboza), 545 F.3d 702,711 (9th Cir. 2008) (citing Carrillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (9th Cir. 2002) and requiring the application of a separate analysis of each prong of "willful" and "malicious").
To show that a debtor's conduct is willful requires proof that the debtor deliberately or
intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Kawaauhau v. Geiger, 523 U.S. 57, 60–61 (1998); Carrillo v. Su (In re Su), 290 F.3d 1140, 1143 (9th Cir. 2002). The debtor must act with a subjective motive to inflict injury, or with a belief that injury is substantially certain to result from the conduct. In re Su, 290 F.3d at 1143. The court may consider circumstantial evidence that may establish what the debtor actually knew when conducting the injury creating action and not just what the debtor admitted to knowing. In re Ormsby, 591 F. 3d at 1206 (9th Cir. 2010). Conversion is not per se a willful and malicious injury; it establishes only the wrongful assertion of dominion over another’s personal property. Peklar v. Ikerd (In re Peklar), 260 F.3d 1035, 1037 (9th Cir.2001). See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1206 (9th Cir.
2001) (for liability under § 523(a)(6), plaintiff must prove debtor acted willfully and
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Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1206 (9th Cir. 2001) (for liability under § 523(a)(6), plaintiff must prove debtor acted willfully and inflicted injury willfully and maliciously rather than recklessly or negligently.) The court must determine whether Cardiel’s acts meet the willful and malicious requirement under § 523(a)(6).
As to the willfulness, OGCC asserts that Cardiel affirmatively admitted no less than five times in his March 2019 deposition testimony (three weeks before his March 20, 2019 Chapter bankruptcy filing) that he most certainly intended to steal the 2009 Rolls-Royce and the 2016 McLaren. Specifically, Cardiel admitted that he intentionally stole the car. In response to the question, "did you go to the dealership with the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In response to the question, "so you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you like. You use bolt cutters that you bought the day before to cut the lock on the gate? You open the gate and then you drive the car off the lot", Cardiel replied "Correct."
Here, it is clear from these quoted parts of deposition that Cardiel intended the acts to steal the vehicles from OGCC. These were not negligent or reckless acts as Cardiel prepared to perform the theft and bought the bolt cutters in advance to achieve his plan. The series of purposeful and deliberate acts for stealing, along with later possession of the car over a period of 6 months to 1 year, resulted in the serious interference with OGCC’s right to possess its cars. Cardiel’s possession of the cars over a period of more than half a year is, at the very least, substantially certain to result in the conversion of OGCC’s cars and more likely intended to inflict that injury. The economic injury to OGCC, including but not limited to, the loss of use and diminished value of vehicle due to mileage incurred by Cardiel, was a direct and certain result by Cardiel’s acts. Despite that Cardiel did not allege that he had a subjective motive to inflict the economic harm to OGCC, Cardiel’s acts to steal the cars for his own entertainment without any indication to return or compensation for OGCC suffice the willingness prong as the economic loss to OGCC was substantially certain resulting from Cardiel’s acts. Moreover, Cardiel’s counsel did not argue against the willfulness in the opposition or produce any evidence to the contrary to suggest otherwise.
Based on the foregoing, the Court finds that Cardiel inflicted an economic injury
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to OGCC upon either acting with a subjective motive to inflict that injury or with a belief that the injury was substantially certain from his theft of two cars and thus the Court determines that willfulness prong is satisfied.
For conducts to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) was done without just cause or excuse. In re Su, 290 F.3d 1140, at 1143. Torts will generally suffice the wrongful act requirement under section 523(a)(6) in the Ninth Circuit. In re Jercich, 238 F.3d 1202, 1204-06 (9th Cir. 2001). The conversion of another's property without his knowledge or consent, done intentionally and without justification and excuse, to the other's injury, constitutes a willful and malicious injury within the meaning of § 523(a)(6). Id, at 1208 (quoting Del Bino v.
Bailey (In re Bailey), 197 F.3d 997, 1000 (9th Cir.1999)).
The evidence establishes that Cardiel’s acts satisfy the malicious prong. As to the first element, the undisputed facts reveal that Cardiel, as a prior employee at OGCC, stole a 2009 Rolls-Royce and a 2016 McLaren from OGCC. Cardiel took advantage of knowledge he accumulated during his prior employment so that he was able to acquire a set of keys to enter the lot where the cars parked. He subsequently stole the cars that were open with a bunch of keys, and then Cardiel used the bolt cutters that he prepared in advance to cut the lock on the gate so he could drive away. Cardiel kept the cars in his residence for more than half of a year and drove the cars for his own entertainment without an intention to return the cars. These acts establish culpabilities as Cardiel was soon charged criminally in the Los Angeles Superior Court for the theft of the vehicles after the cars were located by the Beverly Hills Police Department.
Cardiel afterwards entered into a felony plea agreement in Los Angeles Superior Court. These undisputed facts show that the acts committed by Cardiel are wrongful.
The second element is easily satisfied here as Cardiel intended these acts as he admitted multiple times in his deposition and, as discussed above, OGCC’s injury was substantially certain inflicted by Cardiel’s acts. As to the third element, Cardiel’s theft necessarily caused certain economic injury to OGCC, including but not limited to the loss of use and diminished value of vehicle due to mileage incurred by Cardiel, thus, the third element is satisfied. Lastly, Cardiel did not provide any evidence to show that his acts were done with just cause or excuse. Even to the contrary, Cardiel in his deposition admitted that he stole the cars specifically in order to suit his fancy.
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Therefore, the Court finds OGCC has established the malicious injury requirement under Section 523(a)(6).
Thus, based on the foregoing, the Court determines that OGCC has proven the claim that the debt owed by Cardiel to OGCC for theft of the two vehicles is except from discharge pursuant to 11 U.S.C § 523(a)(6). However, as noted above, there is no admissible evidence in support of exact amount of damages.
Based on the sustained objection to the damage calculations, OGCC has failed to establish the amount of damages for the injury caused by Cardiel’s acts. However, even assuming there was no issue with the damage award, it is unclear from the pleadings as to whether treble damages are appropriate. California Penal Code § 496(a) and (c) provide in relevant part as follows:
(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. …
A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.
…
(c) Any person who has been injured by a violation of subdivision
or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.
In this case, the record reflects that Defendant Cardiel pled no contest as part of a plea agreement to a charge of §10851 of the Vehicle Code. Section 10851 states in part as follows:
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Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.
There is at least one issue concerning the applicability of §496(a) to the restitution award in this case. The Court assumes without determining that a no contest plea as part of a plea bargain results in a criminal conviction. However, it is unclear if the plea to §10851(a) is a conviction of theft, as theft requires intent to steal but § 10851(a) does not, and to the extent the plea bargain constitutes a conviction of theft, under §496(a) a person cannot also be convicted also under §496(a). Finally, the Court understands Cardiel has testified as to intent to steal, but it is also unclear how such testimony factors into the analysis.
Based on the foregoing, assuming there was admissible evidence of damages, it is unclear if OGCC is entitled to treble actual damages along with attorney’s fee pursuant to California Penal Code §496(a) and (c).
As provided by Section 727(d)(1), in order to prevail on cause of action to revoke debtor’s discharge, the movant must prove two elements: (1) that discharge was obtained through debtor’s fraud; and (2) the movant did not know of such fraud until after debtor was granted a discharge. Nielson further clarifies that the fraud must be a but-for cause of the discharge. In re Nielsen, 383 F.3d 922, 925-26 (9th Cir. 2004). A debtor is deemed to have obtained his discharge by fraud if: (1) he knowingly and fraudulently made a false oath in or in connection with the bankruptcy proceeding; and (2) the oath concerned a material fact that would have resulted in the denial of discharge under 11 U.S.C. § 727(a)(4)(A) had it been known prior to discharge. Jones
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v. U.S. Trustee, Eugene, 736 F.3d 897, 900 (9th Cir. 2013); In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010). "An omission or misstatement that 'detrimentally affects administration of the estate' is material." In re Retz, at 1198 (quoting Fogal Legware of Switzerland, Inc., v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir. BAP 1999)).
For OGCC to prove that Cardiel’s discharge was "obtained through" the fraud, OGCC must show that, but for the fraud, the discharge would not have been granted. OGCC alleged that Cardiel’s complete omission of the pending criminal litigation involving the restitution order is material because it constitutes over 60% of Cardiel’s total claims.
That argument is of no merit in no-asset bankruptcy filings. Assuming for the purpose of discussion that Cardiel listed this pending criminal litigation and corresponding restitution in his schedules, it would have no effect on any creditors and Cardiel would get his discharged. The omission would not affect administration of the estate given the non-asset bankruptcy filing. Equally importantly, dischargeability of this litigation is unaffected because of Cardiel’s discharge.
Dischargeability is unaffected by scheduling in Chapter 7 no-assets bankruptcy. In re Nielsen, 383 F.3d 922, at 926. A dischargeable debt would have been discharged, and a non-dischargeable debt would not have been discharged, regardless of scheduling. Id. Therefore, OGCC fails to meet its burden of showing there is no issue on the question of whether the omission is material.
As to the failure to disclose the bank accounts and the company, the Court notes that the argument section of OGCC’s motion on §727(d) only deals with Cardiel’s failure to include the criminal litigation in the schedules. It does not mention the failure to disclosure the bank accounts and companies. OGCC has not presented any evidence to establish the value of those assets in order to show that the non-disclosure was material. Assuming there was the evidence of value, in his opposition, Cardiel has presented the indirect evidence of value so as to raise a question of fact, although the court notes that scant evidence, contained in ¶ 10 of Cardiel’s declaration, lacks any appropriate detail so as to be reliable.
Based on all foregoing, this Court determines that the OGCC has not met the burden of showing the absence of a genuine dispute of material facts as to whether Cardiel knowingly and fraudulently made a false oath concerning a material fact that would have resulted in the denial of discharge for the purpose of 11 U.S.C §727(d) and OGCC’s claim under 11 U.S.C §727(d) should be denied.
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Based on the foregoing, the Court is inclined to GRANT the motion under 523(a)
(6) as to liability (but not damages) and DENY the motion as to 727(d).
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Movant(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
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Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 12/11/19, 5/20/20 Also #23
EH
Docket 1
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #26 EH
Docket 51
- 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
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Frank X Ruggier
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, 12/12/18, 1/30/19, 2/27/19, 4/10/19, 9/18/19, 10/9/19, 1/8/20, 4/8/20, 4/29/20
Also #25 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
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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
EH
Docket 114
- 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
Also #3 EH
Docket 221
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #2 EH
Docket 225
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Movant(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
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From: 6/11/20 EH
Docket 97
- NONE LISTED -
Debtor(s):
Victor Thomas Lawton Represented By Norma Duenas
Movant(s):
Victor Thomas Lawton Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 86
- NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
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(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20
Also #5 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
EH
Docket 76
- NONE LISTED -
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Movant(s):
Randal Scott Oakley Represented By Halli B Heston Halli B Heston Halli B Heston
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 47
- NONE LISTED -
Debtor(s):
Gloria Simmons Represented By Bruce A Wilson
Movant(s):
Gloria Simmons Represented By Bruce A Wilson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 EH
Docket 76
- NONE LISTED -
Debtor(s):
Michael Wright Represented By Terrence Fantauzzi
Movant(s):
Michael Wright Represented By Terrence Fantauzzi Terrence Fantauzzi Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 79
- NONE LISTED -
Debtor(s):
Michael Wright Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
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Docket 30
On August 22, 2019, Shawn & Julie DeLuca ("Debtors") filed a Chapter 13 voluntary petition. On October 24, 2019, PYOD, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $1,061.58 ("Claim 10"). On November 26, 2019, Debtors’ Chapter 13 plan was confirmed. On May 15, 2020, Debtors filed an objection to Claim 10. Debtors argue that Claim 10 is barred by the statute of limitations. Creditor did not file any opposition.
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.
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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 because such claim is contingent or unmatured;
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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 10 states that it is based upon an "installment." Therefore, it appears that Claim 10 fits within the category established by CAL. CODE CIV. P. § 337, and that the statute of limitations is four years. The proof of claim identifies a last payment date of June 3, 1994. This is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 10 is unenforceable.
Additionally, the Court notes that Creditor has failed to oppose 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, DISALLOWING Claim 10 in its entirety.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
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Debtor(s):
Shawn Michael DeLuca Represented By Nicholas M Wajda
Joint Debtor(s):
Julie Lynn DeLuca Represented By Nicholas M Wajda
Movant(s):
Shawn Michael DeLuca Represented By Nicholas M Wajda
Julie Lynn DeLuca Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
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EH
Docket 22
Service: Proper Opposition: Yes
The Court is inclined to CONTINUE the matter for: (1) Creditor to provide alternative evidence of the fair market value of the subject real property; (2) Debtor to establish the location of residence of her husband; and (3) Creditor to file a supplemental response regarding Debtor’s entitlement to the enhanced exemption.
APPEARANCES REQUIRED.
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 20
On December 3, 2019, Andy Manning ("Debtor") filed a Chapter 13 voluntary petition. On March 11, 2020, Debtor’s Chapter 13 plan was confirmed.
On March 16, 2020, Mercer Transportation Co., Inc. filed a proof of claim for an unsecured claim in the amount of $5,846.24 ("Claim 10"). On May 18, 2020, Debtor filed an objection to Claim 10. Debtor argues that Claim 10 was filed late because the deadline for filing claims was February 11, 2020.
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
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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:
(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
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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 –
(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.
FED. R. BANKRP. P. Rule 3002(c) provides that the deadline for filing claims in a Chapter 13 case is 70 days after the order for relief; in this case that date was February 11, 2020. None of the exceptions in 11
U.S.C. § 502(b)(9) or Rule 3002(c) being applicable to this case, Claim 10 was filed late.
Furthermore, "the 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).
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The Court is inclined to SUSTAIN the objection and DISALLOW Claim 10.
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):
Andy M Manning Represented By Paul Y Lee
Movant(s):
Andy M Manning Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 25
- NONE LISTED -
Debtor(s):
Keri Kristina Johnson Represented By Dana Travis
Movant(s):
Keri Kristina Johnson Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
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EH
Docket 16
On May 8, 2020, Jamin & Davina Amond ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate are a 2015 Chevrolet Tahoe (the "Tahoe") and a 2017 Dodge Ram 3500 (the "Ram"). Pursuant to Claims 8 and 9, Cahp Credit Union ("Creditor") holds secured claims against the Tahoe and the Ram. Claim 8, relating to the Tahoe, identifies the claim as being secured in the amount of $31,140 and unsecured in the amount of $2,213.86. Claim 9, relating to the Ram, identifies a secured claim in the amount of $37,133.97.
On May 27, 2020, Debtor filed motions to value the Tahoe and the Ram. Debtor asserts that the Tahoe should be valued at $29,275 and that the Ram should be valued at $24,325.
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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).
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 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 NADA guides identifying the clean retail value of the Tahoe and the Ram. Debtor has also included copies of the CarGurus reports, which were attached to Claim 8 and Claim 9 by Creditor in support of Creditor’s asserted fair market value. The Court notes that, with respect to the Tahoe, the retail values in the two reports are not dissimilar, and the NADA guide being more detailed, the Court is inclined to accept Debtor’s valuation as having higher probative value. With regard to the Ram, however, the valuations are significantly different. The Court notes that NADA guide identifies a mileage (for the Ram, that mileage amount is 434,461), while the CarGuru guide does not specify any mileage. Therefore, the NADA guide being more detailed and having higher probative value, the Court is inclined to accept the Debtor’s valuation.
Tentative Ruling:
11:00 AM
The Court is inclined to GRANT the motions to the extent of: (1) valuing the Tahoe at
$29,275, bifurcating Claim 8 into a secured claim of $29,275 and an unsecured claim in the amount of $4,078.86; and (2) conditioned on proof of mileage of the Ram, valuing the Ram at $24,325, bifurcating Claim 9 into a secured claim in the amount of
$24,325 and an unsecured claim in the amount of $12,808.97.
APPEARANCES REQUIRED.
Debtor(s):
Jamin Ward Amond Represented By Michael E Clark
Joint Debtor(s):
Davina Patricia Amond Represented By Michael E Clark
Movant(s):
Jamin Ward Amond Represented By Michael E Clark
Davina Patricia Amond Represented By Michael E Clark Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 17
On May 8, 2020, Jamin & Davina Amond ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate are a 2015 Chevrolet Tahoe (the "Tahoe") and a 2017 Dodge Ram 3500 (the "Ram"). Pursuant to Claims 8 and 9, Cahp Credit Union ("Creditor") holds secured claims against the Tahoe and the Ram. Claim 8, relating to the Tahoe, identifies the claim as being secured in the amount of $31,140 and unsecured in the amount of $2,213.86. Claim 9, relating to the Ram, identifies a secured claim in the amount of $37,133.97.
On May 27, 2020, Debtor filed motions to value the Tahoe and the Ram. Debtor asserts that the Tahoe should be valued at $29,275 and that the Ram should be valued at $24,325.
11:00 AM
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).
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 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 NADA guides identifying the clean retail value of the Tahoe and the Ram. Debtor has also included copies of the CarGurus reports, which were attached to Claim 8 and Claim 9 by Creditor in support of Creditor’s asserted fair market value. The Court notes that, with respect to the Tahoe, the retail values in the two reports are not dissimilar, and the NADA guide being more detailed, the Court is inclined to accept Debtor’s valuation as having higher probative value. With regard to the Ram, however, the valuations are significantly different. The Court notes that NADA guide identifies a mileage (for the Ram, that mileage amount is 434,461), while the CarGuru guide does not specify any mileage. Therefore, the NADA guide being more detailed and having higher probative value, the Court is inclined to accept the Debtor’s valuation.
Tentative Ruling:
11:00 AM
The Court is inclined to GRANT the motions to the extent of: (1) valuing the Tahoe at
$29,275, bifurcating Claim 8 into a secured claim of $29,275 and an unsecured claim in the amount of $4,078.86; and (2) conditioned on proof of mileage of the Ram, valuing the Ram at $24,325, bifurcating Claim 9 into a secured claim in the amount of
$24,325 and an unsecured claim in the amount of $12,808.97.
APPEARANCES REQUIRED.
Debtor(s):
Jamin Ward Amond Represented By Michael E Clark
Joint Debtor(s):
Davina Patricia Amond Represented By Michael E Clark
Movant(s):
Jamin Ward Amond Represented By Michael E Clark
Davina Patricia Amond Represented By Michael E Clark Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JUAN A MARTINEZ
EH
Docket 10
Service: Improper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11 U.S.C. § 362(c) (3)(C)(i)(II)(cc) because Debtor had a bankruptcy case dismissed in the prior year for failure to perform the terms of a confirmed plan. Section 362(c)(3)(C) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely asserts that Debtor’s income has increased, without any detail describing or evidence supporting the change in Debtor’s financial circumstances.
Furthermore, Judge Houle’s self-calendaring procedures require that Lemuel Jaquez, of Ghidotti Berger LLP, be served with the instant motion because he filed a motion for relief from the automatic stay on December 12, 2019, in Debtor’s prior case. This motion, however, was not served on Mr. Jaquez.
For the foregoing reasons, the Court is inclined to DENY the motion. APPEARANCES REQUIRED.
Debtor(s):
Juan Martinez Represented By
11:00 AM
Movant(s):
Rebecca Tomilowitz
Juan Martinez Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Brenda M Rees Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Angela Helen Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Russell P Eves Represented By Daniel C Sever
Joint Debtor(s):
Lupita Eves Represented By
Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Daniel Gutierrez Gonzalez Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Paige Margaret Miller Represented By William J Howell
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jimmie Moore II Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Dennis Michael Lasby Represented By Daniel King
Joint Debtor(s):
Cynthia Marie Lasby Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Evelyn Corina Armas Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eugene John Bachorski Represented By Jeremiah D Raxter
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Josephine Jaques Represented By Randolph R Ramirez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 44
On February 28, 2020, Walter Hunter ("Debtor") filed a Chapter 13 voluntary petition. Among the assets of the estate is a 2004 Mercedes CL500 (the "Property"). Pursuant to Claim 10, Wilshire Consumer Credit ("Creditor") holds a secured claim against the Property. Claim 10 identifies the total value of Creditor’s claim as $3,818.21 and lists the entire value of the claim as secured.
On June 4, 2020, Debtor filed a motion to value the Property. Debtor asserts that the Property should be valued at $1,500.
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
11:00 AM
In re Penrod, 636 F.3d 1175, 1177 (9th Cir. 2011).
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 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 detailed appraisal of the Property indicating that the "fair market value" of the Property is $1,790. The appraisal contains a definition of fair market value that generally comports with statutory language included in 11 U.S.C.
§ 506(a)(2). Debtor has also submitted a declaration in support of the motion indicating that his proposed valuation of $1,500 reflects partial costs to repair the power steering hose and alignment. Given the appraisal’s detailed discussion of the condition and defects of the Property, the Court believes the appraisal, unmodified, represents the appropriate valuation of the Property.
Tentative Ruling:
The Court is inclined to GRANT the motion to the extent of valuing the Property at
$1,790, leaving Creditor with a secured claim in the amount of $1,790 and an unsecured claim in the amount of $2,028.21.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Movant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #28 EH
Docket 0
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 110
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 82
- NONE LISTED -
Debtor(s):
Jesus Danny Ontiveros III Represented By Gary S Saunders
Joint Debtor(s):
Marie Irene Ontiveros Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 60
- NONE LISTED -
Debtor(s):
Maria Aurora Chaidez Grajeda Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 81
- NONE LISTED -
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
11:01 AM
Docket 74
- NONE LISTED -
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
11:01 AM
EH
Docket 133
- 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
11:01 AM
Docket 49
- NONE LISTED -
Debtor(s):
Christina Irene Dillon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 56
- NONE LISTED -
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 54
- 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
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 98
- NONE LISTED -
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 62
- NONE LISTED -
Debtor(s):
Denise Cherie Darden Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
Frank T. Moore Represented By
Patricia M Ashcraft - SUSPENDED BK - Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Susana Olga Corona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 37
- NONE LISTED -
Debtor(s):
Ryan Sollazzo Represented By Paul Y Lee
Joint Debtor(s):
Reanna Sollazzo Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Michelle Crain Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 72
- NONE LISTED -
Debtor(s):
Judy May Wells Represented By David L Nelson
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Jorge Mercado Represented By Paul Y Lee
Joint Debtor(s):
Martha Mercado Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Jose G. Rodriguez Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 22
- NONE LISTED -
Debtor(s):
Jaqueline Aguilar-Ramos Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: AGUSTIN NAPOLION JOYA AND DORA MARIA JOYA
From: 6/30/20 EH
Docket 19
Service: Shortened Notice – Proper Opposition: None
The Court has reviewed the motion. On June 4, 2020 (hereinafter "Petition Date"), Agustin Napolion Joya (hereinafter "Debtor") and Dora Maria Joya (hereinafter "Joint Debtor," collectively "Debtors") filed a Chapter 13 voluntary petition. Pursuant to 11
U.S.C. § 362(c)(3), the automatic stay in respect to the Debtors expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtors had one prior Chapter 13 voluntary petition, case number 6:17-bk-20121-MH ("Prior Case"), pending and dismissed within one-year period. In the Prior Case, Nationstar Mortgage, LLC doing business as Mr. Cooper filed a motion from relief of stay in regard to the property located at 1365 Riverstone Court, Hemet, California 92545. Debtors have served Select Portfolio Servicing, which is the firm Nationstar Mortgage transferred their claim to, pursuant to the Court’s Miscellaneous Instructions.
Debtors have filed this motion to continue the stay pursuant to 11. U.S.C § 362(c)(3)
12:00 PM
(B). Debtors’ Prior Case was dismissed because of delinquent payments totaling
$4,002.00. Debtors claim that both of their freightliner work trucks broke down at the same time, and because of the lose of income due to the trucks breaking down and the costly repair, Debtors claim they were unable to pay their monthly plan payments.
Debtors do not anticipate any having any issues in this present case.
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtors have not provided detailed, competent, evidence sufficient to rebut the presumption of bad faith. Specifically, there is no detail nor supporting evidence as to the cost of repairing the trucks, the revenue loss from the Trucks being out of commission, and whether the trucks are both now repaired and operational.
Debtors’ statements, lacking detail, are not sufficient to establish clear and convincing evidence to rebut the presumption pursuant to 11 U.S.C § 362(c)(3) that the case was not filed in good faith.
APPEARANCES REQUIRED.
Debtor(s):
Agustin Napolion Joya Represented By Daniel King
12:00 PM
Joint Debtor(s):
Dora Maria Joya Represented By Daniel King
Movant(s):
Agustin Napolion Joya Represented By Daniel King
Dora Maria Joya Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
U.S.C. § 363(b) and (f); (2) Rejecting or Assuming and Assigning Certain Executory Contracts and Unexpired Leases; (3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good-Faith Purchasers Pursuant to 11
U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
From: 6/30/20 EH
Docket 608
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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
11:00 AM
Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 7/1/20 EH
Docket 54
Debtor(s):
Blanca Aguirre Pro Se
Movant(s):
Blanca Aguirre Pro Se
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Kevin T Lafky
2:00 PM
EH
Docket 8
Debtor(s):
Juan R. Garcia Represented By Keith Q Nguyen
Joint Debtor(s):
Lorena I. Garcia Represented By Keith Q Nguyen
Movant(s):
Juan R. Garcia Represented By Keith Q Nguyen Keith Q Nguyen Keith Q Nguyen
Lorena I. Garcia Represented By Keith Q Nguyen Keith Q Nguyen
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
MOVANT: JUAN A MARTINEZ
From: 7/2/20 EH
Docket 10
Debtor(s):
Juan Martinez Represented By Rebecca Tomilowitz
Movant(s):
Juan Martinez Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
U.S.C. § 363(b) and (f); (2) Rejecting or Assuming and Assigning Certain Executory Contracts and Unexpired Leases; (3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good-Faith Purchasers Pursuant to 11
U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
From: 6/30/20, 7/8/20 EH
Docket 608
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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
10:00 AM
Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 5/8/18, 8/21/18, 9/11/18, 9/25/18, 10/30/18, 11/6/18, 12/18/18, 3/5/19, 3/26/19, 8/20/19, 10/29/19, 12/17/19, 1/28/20, 3/24/20, 3/31/20
EH
Docket 18
Debtor(s):
G Hurtado Construction, Inc. Represented By Michael Jones Sara Tidd
2:00 PM
From: 3/31/20, 4/21/20, 5/26/20, 6/30/20 EH
Docket 64
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
11:00 AM
(3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good- Faith Purchasers Pursuant to 11 U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
HOLDING DATE
From: 6/30/20, 7/8/20, 7/9/20 EH
Docket 608
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente
11:00 AM
Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
Also #3 EH
Docket 28
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Movant(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
From: 1/15/20, 3/25/20, 4/1/20 Also #2
EH
Docket 17
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20
EH
Docket 1
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20, 3/18/20
EH
Docket 5
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
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
Mark Bastorous Represented By Thomas F Nowland
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
3:00 PM
EH
Docket 116
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
10:00 AM
(3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good- Faith Purchasers Pursuant to 11 U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
HOLDING DATE
From: 6/30/20, 7/8/20, 7/9/20, 7/15/20 EH
Docket 608
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente
10:00 AM
Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
11:00 AM
From: 7/15/20 EH
Docket 116
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
MOVANT: WILMINGTON TRUST COMPANY
From: 5/12/20 EH
Docket 152
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Wilmington Trust Company (hereinafter "WTC") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtors must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1).
11:00 AM
Debtors have opposed the motion. Debtors state that "they are seeking an adequate protection order to cure the outstanding post-petition delinquency." Dkt. No. 156. Debtor claims that "their counsel has reached-out to opposing counsel and was informed that due to the current COVID-19 situation, there have been longer delays than normal regarding approval." Id.
Parties are to update the Court on the status of adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Frank A Horzen Represented By Paul Y Lee
Joint Debtor(s):
Barbara A Horzen Represented By Paul Y Lee
Movant(s):
Wilmington Trust Company Represented By April Harriott
Matthew R. Clark III Sean C Ferry Theron S Covey Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 57
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-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):
Neil Gary Moon Represented By Jenny L Doling
Joint Debtor(s):
Mary Laura Moon Represented By
11:00 AM
Movant(s):
Jenny L Doling
DEUTSCHE BANK NATIONAL Represented By
April Harriott Keith Labell Theron S Covey Eric P Enciso Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 82
- NONE LISTED -
Debtor(s):
Jimmie Dale Montezuma Represented By Michael E Clark
Joint Debtor(s):
Jovita Arzate Montezuma Represented By Michael E Clark
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Howard B Grobstein (TR) Represented By David Seror
Jessica L Bagdanov
11:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 82
Service: Proper Opposition: Yes
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
11:00 AM
Trustee(s):
Natalie E Lea
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 43
- NONE LISTED -
Debtor(s):
Fermisa Ong Yang Represented By Ivan Trahan
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Katherine S Walker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 35
- NONE LISTED -
Debtor(s):
Michael Lawrence Ricks Represented By
Richard Komisars III
Joint Debtor(s):
Debra Jean Ricks Represented By
Richard Komisars III
Movant(s):
U.S. Bank National Association as Represented By
Nancy L Lee Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BAYVIEW LOAN SERVICING , LLC
EH
Docket 40
- NONE LISTED -
Debtor(s):
Jonathon Keith Stoner Represented By Sundee M Teeple
Joint Debtor(s):
Jacqueline Belinda Stoner Represented By Sundee M Teeple
Movant(s):
Bayview Loan Servicing, LLC Represented By
Dane W Exnowski Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 44
Service: Proper Opposition: Late
Parties to apprise Court of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Josephine H Holguin Represented By Richard L Barrett
Movant(s):
Deutsche Bank National Trust Represented By Bonni S Mantovani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC dba SHELLPOINT MORTGAGE SERVICING
EH
Docket 36
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley Michael Smith
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto James F Lewin
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 5/26/20 EH
Docket 36
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
James Olin Gardner Represented By Marcus Gomez
Joint Debtor(s):
Karen Rose Gardner Represented By Marcus Gomez
Movant(s):
Wilmington Savings Fund Society, Represented By
11:00 AM
Trustee(s):
Erin M McCartney Mark S Krause
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES
EH
Docket 10
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests 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 Garcia Represented By Fred Edwards
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 9
Service is Proper Opposition: None
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2) –
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as
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applicable; and
(emphasis added). Here, Debtor’s statement of intention does not address the subject collateral. The deadline for filing or amending the statement of intention having passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Christa Teresa McCarthy Represented By Neil R Hedtke
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20, 6/9/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
Also #15 EH
Docket 110
6/30/20
BACKGROUND:
On December 30, 2019 (hereinafter the "Petition Date"), Sunyeah Group Corporation, a California Corporation (hereinafter "SGC"), filed a Chapter 11 voluntary petition. SGC is operating its business, managing its affairs, and administering its estate as a debtor-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108. SGC is a manufacturer of, among other things, annealed, customized, and tempered glass. Dkt. No. 10, Pg. 2.
Kippartners, L.P. (hereinafter "KLP") is the owner of the industrial building located at 930 Wanamaker Avenue, Ontario, California (hereinafter the "Industrial Building"). Claim 14-1. By its motion, KLP seeks conversion of Debtor’s case to Chapter 7.
ANALYSIS:
"On request of a party in interest…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…" 11 U.S.C. § 1112(b)(1) (emphasis added). Kippartners has standing as a creditor to initiate such a motion. 7
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Collier on Bankruptcy ¶ 112.04[1] (Richard Levin & Henry J. Sommer eds., 16th ed.) (stating that a party in interest set forth in 11 U.S.C. 1109 includes "creditors, a creditors’ committee, equity security holder and an equity security holder committee, and indenture trustee, as well as a trustee and the debtor.").
Under 11 U.S.C. § 1112(b)(4), the Bankruptcy Code contains sixteen examples of what constitute cause for conversion or dismissal. The list is not exhaustive. In re Ameribuild Constr. Mgmt., Inc., 399 B.R. 129, 131 n. 3 (Bankr. S.D.N.Y. 2009) (stating that "the list contained in 1112(b) is not exhaustive. The Court will be able to consider other factors as they arise, and to use its equitable powers to reach an appropriate result in individual cases.").
Furthermore, the standard to prove "cause" is by a preponderance of the evidence. In re Corona Care Convalescent Corp., 527 B.R. 379, 382 (Bankr. C.D. Cal. 2015). "The definition of a preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that that the fact sought to be proved is more probable than not." In re Cooper, 2012 Bankr. Lexis 6119, *6 (Bankr. E. D. Cal. 2012).
Here the Court is inclined to find "cause" exists to convert the Debtor’s case to one under Chapter 7 pursuant to 11 U.S.C. § 1112(b)(1) under a totality analysis for the following primary reasons, explained in greater detail below:
Debtor has no business operations (on petition date or currently) and no possibility of future business operations;
Debtor has no employees (on petition date or currently);
Debtor’s assets on petition date were comprised of only personal property located at debtor’s former business premises, and allegedly certain accounts receivable, and Debtor’s assets currently consist of approximately $700,000 in cash and allegedly certain accounts receivable (with significant amounts of
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administrative expenses having already been accrued by Debtor’s counsel and likely KLP);
Liens in favor of Debtor’s principals were perfected 12 days before the petition date but not set aside by current principals, notwithstanding request by Movant, until 6 months after the case was filed and 4 days after Movant filed its motion to dismiss; and
The principals’ liens were not listed in the Statement of Financial Affairs, notwithstanding that Debtor was clearly aware of them when the SOFA was filed, having specifically referenced them in a prior stipulation for use of cash collateral.
Given this conclusion, before turning to Debtor’s burden in opposing the motion and setting aside the issues regarding the principals, the Court first notes that one key practical question it is faced with in considering the motion is what alternative provides the most cost effective means of resolving the case: having a chapter 7 trustee administer the case with an additional layer of administrative expenses, or having Debtor’s counsel’s prosecute the case to conclusion, with an associated increase in counsel's fees and costs. It is impossible to conclusively evaluate the greater costs on this (or generally any) record, but the Court believes strongly that a disclosure statement and plan process will certainly be more expensive than a chapter 7 distribution, even net of Trustee counsel fees incurred getting up to speed, and given the facts above the Court cannot help but believe that there was no need for the greater expenses of a chapter 11 case on the petition date, or at this point, other than to protect the principals’ interests – protection that would be lost in a Chapter 7. Stated otherwise, it is this combination of factors: lack of confidence, based on principals' actions, in their ability to direct Debtor’s actions for the benefit of creditors, a relatively small and finite amount of estate assets shrinking daily by increasing administrative expenses, no hope of rehabilitation, and what the Court believes will be greater expenses continuing in a chapter 11 plan process where there is no need for one, that serves as "cause" to convert.
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Here simply no revival of the Debtor’s business, much less restructuring, will
occur. This is simply now a garden-variety situation of mostly liquidated assets needing to marshaled by a trustee and distributed to creditors, with some di minimis ancillary activity, such as liquidating accounts receivable and resolving the asset ownership dispute, that can easily be performed by a trustee. Even the liquidation of assets earlier in the case was simply an sale of equipment, not any kind of ongoing business sale usually contemplated in the Chapter 11 liquidation.
Finding cause to convert, the Court turns to the Debtor’s burden to demonstrate unusual circumstances showing that conversion is not in the best interest of creditors or the estate. Ultimately, the Court is not persuaded that any unusual circumstances exist here.
In particular, there is no extensive learning curve for a Chapter 7 trustee in this case. There is no evidence that collecting accounts receivable and distributing cash in this case will be complicated. Plus the issues regarding asset ownership do not appear particularly extensive or complex. As an aside, the court approval of the cash collateral stipulation that includes the date that the principals’ lien recordation does not somehow bless or immunize the principals of their failure to disclose. It is simply not the Court’s burden to scrutinize cash collateral stipulations such as this for issues such as whether alleged liens are valid, much less preferential.
There appears to be some confusion in the briefing as to whether conversion was requested on the basis that the case was filed in bad faith, or on bad faith that exists currently, or otherwise. Ultimately, as noted above and otherwise for reasons stated in the moving papers, the Court simply finds uncontroverted cause to grant the motion, noting that a number of the elements in support of cause also serve as factors in a finding of bad faith.
As to the evidentiary objections filed by Debtor, the Court sustains all objections based on relevancy, except as to the last statement, which objection is overruled.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
Also #14 EH
Docket 94
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
Adv#: 6:20-01097 Sunyeah Group Corporation v. Kippartners, L.P.
EH
Docket 4
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Defendant(s):
Kippartners, L.P. Represented By Sean A OKeefe
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
Plaintiff(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
Adv#: 6:20-01097 Sunyeah Group Corporation v. Kippartners, L.P.
$350.00). Complaint For: (1) Declaratory Relief; (2) Avoidance of Preferential Transfers Pursuant to 11 U.S.C. § 547; (3) Avoidance of Fraudulent Transfers Pursuant to 11 U.S.C. § 548; (4) Avoidance of Post-Petition Transfers Pursuant to 11 U.S.C. § 549; (5) Recovery of Value of Avoidable Transfers Pursuant To 11 U.S.C. § 550; (6) Turnover of Security Deposit Pursuant To 11 U.S.C. § 542; and (7) Disallowance of Claim Pursuant to 11 U.S.C. § 502(d) Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)),(91 (Declaratory judgment))(Kwong, Jeffrey)
Also #16 EH
Docket 1
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Defendant(s):
Kippartners, L.P. Represented By Sean A OKeefe
Plaintiff(s):
Sunyeah Group Corporation Represented By
2:00 PM
David B Golubchik Jeffrey S Kwong
2:00 PM
Also #19 EH
Docket 650
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner
2:00 PM
Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
(3) Approving Buyers, Successful Bidders, and Any Back-up Bidders as Good- Faith Purchasers Pursuant to 11 U.S.C. § 363(m); and (4) Authorizing Payment of Undisputed Liens and Other Ordinary Costs of Sale
HOLDING DATE
From: 6/30/20, 7/8/20, 7/9/20, 7/15/20, 7/16/20 Also #18
EH
Docket 608
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich
2:00 PM
Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
11:00 AM
Docket 66
7/22/20
Opposition: None Service: 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 application for payment of Counsel, and the application for payment of Accountant, the Court is inclined to APPROVE the following administrative expenses:
Trustee’s Fees: | $20,962.59 |
Trustee’s Expenses: | $377.21 |
Attorney’s Fees: | $46,230.50 |
Attorney’s Expenses: | $1,494.57 |
Accountant’s Fees: | $2,873.00 |
Accountant’s Expenses: | $47.04 |
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):
Mitchell C. Nelson Represented By Douglas A Plazak
Trustee(s):
Lynda T. Bui (TR) Represented By Leonard M Shulman Rika Kido
11:00 AM
Docket 23
7/22/20
Opposition: None Service: 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’s Fees: $581.50
Trustee’s Expenses: $112.00
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):
Brenda C Pantoja Gutierrez Represented By Edgar P Lombera
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Docket 39
7/22/20
Opposition: None Service: 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’s Fees: $1,306.27
Trustee’s Expenses: $385.56
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):
DanL Patterson Represented By Alexander Pham
Joint Debtor(s):
Julia Patterson Represented By Alexander Pham
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Juan R. Garcia Represented By Keith Q Nguyen
Joint Debtor(s):
Lorena I. Garcia Represented By Keith Q Nguyen
Movant(s):
Juan R. Garcia Represented By Keith Q Nguyen Keith Q Nguyen Keith Q Nguyen
Lorena I. Garcia Represented By Keith Q Nguyen Keith Q Nguyen
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 19
On August 15, 2019 (hereinafter the "Petition Date"), Fernando Aleman (hereinafter "Debtor") filed a Chapter 7 voluntary petition. Robert S. Whitmore was appointed and acted as the Chapter 7 Trustee.
Pursuant to 11 U.S.C. § 341(a), a meeting of the creditors was schedule for September 17, 2019. Debtor attended the meeting where a few inconsistencies arose: (1) Debtor provided identification showing his last name to be ‘Zamora,’ not ‘Aleman,’ and (2) Debtor’s Statement of Affairs listed his income in excess of $132,000 for 2018 and
$143,00 for 2017, not consistent with his monthly income of $6,500 listed on his Schedule I. Dkt. No. 20, Decl. of Robert S. Whitmore; Dkt. No. 1, Statement of Income; Dkt. No. 1, Statement of Affairs.
Debtor admitted that his income listed on his Statement of Income as being incorrect. Dkt. No. 20, Decl. of Robert S. Whitmore, Par. 4. The meeting of the creditors was continued to October 21, 2019, for the Debtor to add ‘Zamora’ to the subline ‘all other names you have used in the last 8 years’ and amend Schedule I and the Means Test to reflect his correct income. Id. at Par. 6.
Debtor added his last name to his petition and amended his Schedule I and his Means Test. Nonetheless, the discrepancies persisted. Debtor listed his Schedule I’s payroll tax deduction to be $3,550.06 per month and Means Test’s payroll tax deduction to be
$3,467.00 per month. Id. at Par 7. Debtor’s pay vouchers show Medicare and Social Security withholding in the amount of $5,936.00 year to date, which was about
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$1,400.00 less than the amount listed in his petition.
Yet again, the meeting of the creditors was continued to November 19, 2019, so either Debtor could amend his petition to resolve the discrepancies or Debtor could provide documents to support the figures in his amended Schedule I and Means Test. Id. at 11. Debtor appeared at the meeting of the creditors held on November 19, 2019.
However, he neither provided any documents to support his figures in his amended Schedule I and Means Test nor filed any amendments to his Schedule I or Means Test.
Subsequently, there were three more continuation of the meeting of the creditors. At each meeting, the Debtor either failed to appear or failed to provide documents supporting his figures or amending his Schedule I or Means Test. The Chapter 7 Trustee now files this motion to dismiss Debtor’s case because pursuant to 11 U.S.C.
§ 707 and has requested a bar from filing under 11 U.S.C. § 109(g).
This Court finds cause for dismissal under the express provision of 11 U.S.C. § 707(a)
— "unreasonably delay by the debtor that is prejudicial to creditors." The Debtor’s delay in producing the requested documents or making amendments to his Schedule I and his Means Test was unreasonable. Even after six adjourned meetings of the creditors, spanning roughly about twenty-five weeks, Debtor still failed to provide the information necessary for him to be fully examined.
Furthermore, under 11 U.S.C. § 109(g), the Court can bar the Debtor from filing a petition under this Title for 180 days if the Debtor is found to have willfully failed to appear or comply with a court order. The Bankruptcy Code does not define the term ‘willful.’ Courts, nonetheless, have "consistently held ‘willful’ to mean ‘deliberate,’ ‘intentional disregard,’ or ‘plain indifference.’" In re Williams, 2012 Bankr. Lexis 5452, *4 (Bankr. D. Ala., 2012) quoting In re Nix, 217 B.R. 237, 238-239 (Bankr.
W.D. Tenn. 1998).
A debtor’s failure to timely file required documents can warrant a finding of willful failure to comply with the court’s order. Id. In this case, such finding is warranted. After the Debtor was told what he needed to do, to either provide supporting documents for his figures or amend his Schedule I and Means Test, Debtor failed to do either when he decided to make an appearance, if at all, to the meetings of the
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creditors.
Furthermore, pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this to be consent to the granting or denial of the motion. Debtor has not responded to this motion.
In this case, denial of a discharge would require an adversary proceeding. Since no discharge has been entered, however, that request in the motion is moot, and thus, the motion GRANTED and the case is dismissed pursuant to 11 U.S.C. § 707(a)(1) and a 180-day bar takes effect pursuant to 11 U.S.C. § 109(g)(1).
APPEARANCES REQUIRED.
Debtor(s):
Fernando Aleman Represented By Bruno Flores
Movant(s):
Robert Whitmore (TR) Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
Approve Overbid Procedures; and (3) Determine That Buyer is Entitled to Protection Pursuant to 11 U.S.C. § 363(m); Declarations of Howard Grobstein and Darren Hubert in Support Thereof. (Bagdanov, Jessica)
EH
Docket 85
Notice was timely and effective. Notice to all creditors, as required by FRBP 2002(a)(2), was fulfilled. Notice on the Court’s website, as required by LBR
6004-1(f), was proper.
On December 17, 2018 (hereinafter the "Petition Date"), Jimmie Dale Montezuma (hereinafter "Debtor") and Jovita Arzate Montezuma (hereinafter "Joint Debtor") (collectively hereinafter "Debtors) filed a Chapter 7 voluntary petition.
Howard Grobstein was appointed and has acted as the Chapter 7 Trustee for this petition. Debtors, as part of their commencement document, listed a property located
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at 11488 Via Monte Fontana, California 92336 (hereinafter the "Property").
In his attempt to maximize the value of the Estate, Howard Grobstein, has filed this motion to seeking the Court’s approval to sell the Property to William A. Cruz, Andy W. Cruz and Mathew I. Cruz (collectively hereinafter the "Buyers") pursuant to terms and conditions set forth in the California Residential Purchase Agreement, Joint Escrow Instructions, Trustee’s addendum and all amendments1.
The Buyers are willing to purchase the property from the Debtors for
$450,000.00. The Buyers made an initial deposit of $13,500.00, which has been entrusted to A&A Escrow Services, Inc.
Howard Grobstein, via this motion, is also seeking (1) authorization to sell the Property to the Buyers or to a successful bidder free and clear of all liens, claims, interests, and encumbrances, with such liens, claims, interest, and encumbrances to attach to the sale proceeds, net of expenses of sale, with the same priority and rights of enforcement as previously existed pursuant to 11 U.S.C. §§ 363(b) and 363(f);
authorization to execute any and all documents that may be necessary or convenient to consummate the sale;
authorization to sell the Property to the Buyers or a successful bidder on the terms and conditions set forth herein, on an "as-is," "where-is," and "with-all-faults" basis without any warranties, expressed or implied, and without any contingencies, without any representations or warranties by the Trustee;
authorization of the payment through escrow of the amounts asked for;
approval of the proposed Bidding Procedures for the sale of the Property;
finding that the Buyers or a successful bidder is a good faith purchaser of the Property pursuant to 11 U.S.C. § 363(m); and
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waiver of the fourteen-day stay provided by FRBP 6004(h).
U.S. Bank, N.A., first priority deed of trust beneficiary of the Property, does not oppose the motion because it provides for its lien being paid in full through escrow. Dkt. No. 91.
11 U.S.C. § 363(b)(1)
The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate . . .
11 U.S.C. § 363(f)
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--
. . .
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;
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such interest is in bona fide dispute; or
. . .
11 U.S.C. § 363(m)
The 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, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal.
FRBP 6004
Notice of proposed use, sale, or lease of property
Notice of a proposed use, sale, or lease of property, other 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.
Objection to proposal
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Except as provided in subdivisions (c) and (d) of this rule, an objection to a proposed use, sale, or lease of property shall be filed and served not less than seven days before the date set for the proposed action or within the time fixed by the court. An objection to the proposed use, sale, or lease of property is governed by Rule 9014.
Sale free and clear of liens and other interests
A motion for authority to sell property free and clear of liens or other interests shall be made in accordance with Rule 9014 and shall be served on the parties who have liens or other interests in the property to be sold. The notice required by subdivision (a) of this rule shall include the date of the hearing on the motion and the time within which objections may be filed and served on the debtor in possession or trustee.
. . .
Conduct of sale not in the ordinary course of business
Public or private sale
All sales not in the ordinary course of business may be by private sale or by public auction. Unless it is impracticable, an itemized statement of the property sold, the name of each purchaser, and the price received for each item or lot or for the property as a whole if sold in bulk shall be filed on completion of a sale. If the property is sold by an auctioneer, the auctioneer shall file the statement, transmit a copy thereof to the United States trustee, and furnish a copy to the trustee, debtor in possession, or chapter 13 debtor. If the property is not sold by an auctioneer, the trustee, debtor in possession, or chapter 13 debtor shall file the statement and transmit a copy thereof to
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the United States trustee.
. . .
(h) Stay of order authorizing use, sale, or lease of property
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.
LBR 6004-1
(a) General. The requirements of LBR 9013-1 through LBR 9013-4 apply to a motion for an order establishing procedures for the sale of estate assets and a motion seeking authorization to sell, use or lease estate property, except as provided by this rule.
. . .
Motion for Order Authorizing the Sale of Estate Property.
General. Unless otherwise ordered by the court and subject to FRBP 6003(b), an order authorizing the sale of estate property other than in the ordinary course of business may be obtained upon motion of the trustee or debtor in possession in a chapter 7, 11, or 12 case after notice and a hearing pursuant to LBR 9013-1(a) or after notice of opportunity for hearing under LBR9013-1(o)(1), except the following which must be set for hearing pursuant to LBR 9013-1(a):
A sale of all or substantially all of the debtor’s assets in a case under chapter 11 or
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12; or
A sale of property that is either subject to overbid or concerning which the trustee or debtor in possession has been contacted by potential overbidders.
Motion.
A motion for an order authorizing the sale of estate property, other than in the ordinary course of business, 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.
If the proposed sale is not subject to overbid, the declaration must include a certification that the movant has not been contacted by any potential overbidder and that, in the movant’s business judgment, there are no viable alternative purchasers.
A memorandum of points and authorities is not required but may be filed in support of the motion.
Notice of Hearing. If the motion is set for hearing pursuant to LBR 9013-1, the notice must state:
The date, time, and place of the hearing on the proposed sale;
The name and address of the proposed buyer;
A description of the property to be sold;
The terms and conditions of the proposed sale, including the price and all contingencies;
Whether the proposed sale is free and clear of liens, claims or interests, or subject to them, and a description of all such liens, claims, or interests;
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Whether the proposed sale is subject to higher and better bids;
The consideration to be received by the estate, including estimated commissions, fees, and other costs of sale;
If authorization is sought to pay a commission, the identity of the auctioneer, broker, or sales agent and the amount or percentage of the proposed commission to be paid;
A description of the estimated or possible tax consequences to the estate, if known, and how any tax liability generated by the sale of the property will be paid; and
The date by which an objection must be filed and served.
. . .
Publication of Notice of Sale of Estate Property. Whenever the trustee or debtor in possession is required to give notice of a sale or of a motion to sell property of the estate pursuant to FRBP 6004 and 2002(c), an additional copy of the notice and court- approved form F 6004-2.NOTICE.SALE, Notice of Sale of Estate Property must be submitted to the clerk at the time of filing for purposes of publication by the clerk on the court’s website.
Howard Grobstein, acting in his capacity as the Chapter 7 Trustee, seeks to sell the Property for the purchase price of $450,000.00. Dkt. No. 85, Terms of Purchase Agreement. Buyers have deposited $13,500.00 to A&A Escrow Services, Inc. Id.
Trustee, with Court’s approval, would pay the Broker a commission of six percent of
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the purchase price and reimburse the Broker of utility costs incurred, estimated to be equal or less than $885.00. Id. A Chapter 7 Trustee, "after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate." 11 U.S.C. § 363(b)(1). A bankruptcy court can authorize the sale of substantially all of the assets of the estate under 11 U.S.C. § 363(b) upon a proper showing that the sale is in the best interests of the estate, that there is a sound business purpose for the sale, and that it was proposed in good faith. In re 240 N. Brand Partners, Ltd., 200 B.R.
653, 659 (9th Cir. BAP 1996); In re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841
(Bankr. C.D. Cal 1991); In re Lionel Corp., 722 F.2d 1063, 1070 (2nd Cir. 1983).
In other words, the court must determine whether the proposed sale: (1) is fair and reasonable; (2) was adequately marketed; (3) was negotiated and proposed in good faith; (4) is being made to a purchaser proceeding in good faith; and (5) is an "arms-length" transaction. In re Wilde Horse Enterprises, Inc. at 841-42. The requirements of 11 U.S.C. § 363(b) were established to protect creditors’ interest in the assets of the estate. In re 240 N. Brand Partners, Ltd. at 659.
Fair & Reasonable
The Trustee’s proposed sale appears to be fair and reasonable. The Trustee has declared that such a sale would maximize the return to the Estate. Dkt. No. 85, Pg. 19. Trustee believes that net proceed benefit to the Estate would approximate $75,000.00. Id. After receiving seven offers, the Trustee submitted counteroffers on the two highest-and-best offers. The Buyers’ offer was the highest-and-best offer received on the property. Id.
Adequately Marketed
The Property appeared to be adequately marketed. The Broker listed the property on MLS, on Zillow.com, Realtor.com, and Redfin.com. Id. at 13. The Broker
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provided over eight hundred 3D scan impressions of the Property, held twelve private showing of the Property, and received seven offers on the Property.
Negotiated and Proposed in Good Faith
The Trustee represents that the negotiations with Buyers were in good faith. Id.
Howard Grobstein testifies that the Trustee has no prior relation to the Buyers nor does he know the Buyers prior to his involvement in this bankruptcy case. Id. at Decl. of Howard Grobstein.
There is no contradictory evidence that the proposed sale was negotiated in bad faith, and this element appears to be satisfied.
Purchaser in Good Faith
There is no indication that Buyers are proceeding in anything other than good faith. There is no evidence to contradict this assertion. Thus, this element is satisfied.
Arms-length Transaction
The Trustee represents that negotiations with the Buyers were made at arms- length. Id. All of the available evidence appears to confirm that this was an arms- length transaction. There is no evidence to contradict his testimony; thus, this element is satisfied.
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§363(f)(3) – Sale Proceeds Exceed Liens
The Trustee seeks to sell the Property free and clear of liens and encumbrances pursuant to 11 U.S.C. § 363(f)(3). Id. at 8. 11U.S.C. § 363(f)(3) provides that property of the estate can be sold free and clear of liens if the sales price is greater than the aggregate value of all of the liens on the property. 11 U.S.C. § 363(f)(3). According to the motion, the only claim secured by the Property is one held by U.S. Bank, and the Trustee anticipates paying this lien in full through escrow. U.S. Bank has filed a non- opposition to this motion.
The Trustee requests a determination that Buyers are good-faith purchasers as defined in 11 U.S.C. § 363(m). Id. If a purchaser is a good-faith purchaser, then 11
U.S.C. § 363(m) provides that a reversal or modification of the sale on appeal will not affect the validity of the purchaser's interest in the property. 11 U.S.C. § 363(m). A good-faith purchaser is defined under equitable principles as "one who buys in good faith and for value." In re Ewell, 958 F.2d 276, 281 (9th Cir. 1992). A lack of good faith is typically shown through "fraud, collusion between the purchaser and other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders." Id.
Howard Grobstein declares that the discussions between himself and Buyers
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were in good faith, without collusion, and at arms-length. Id. at 13. He states he had no relation to the Buyers nor did he know them prior to their involvement in this case. Id. There is no evidence indicating possible fraud or collusion. Buyers appear to be good-faith purchasers as contemplated by 11 U.S.C. § 363(m).
Finally, the Trustee requests a waiver of the 14-day stay provided for in FRBP 6004(h) in order to reduce the cost related to having an escrow opened. Id. at 10. It does appear that a waiver would be appropriate to allow the Trustee to close the escrow without incurring additional cost.
Based on the reasons stated above, subject to overbidding at the hearing on the motion, the Court (1) approves the terms of the Purchase Agreement (2) authorizes the sale of the Property free and clear of all liens, claims, and encumbrances pursuant to 11 U.S.C. §§ 363(b) and (f); (3) authorizes the Trustee to execute any and all documents that may be necessary or convenient to consummate the sale; (4) authorizes the sale of the Property to Buyers or the successful bidder on the terms and conditions set forth in the motion; (5) authorizes the payment through escrow; (6) approves the proposed Bidding Procedures; and (6) finds the Buyers are good-faith purchasers of the Property pursuant to 11 U.S.C. § 363(m). The Court finds it prudent to hold any findings on the successful over bidder being a good-faith purchaser.
APPEARANCES REQUIRED.
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Debtor(s):
Jimmie Dale Montezuma Represented By Michael E Clark
Joint Debtor(s):
Jovita Arzate Montezuma Represented By Michael E Clark
Movant(s):
Howard B Grobstein (TR) Represented By David Seror
Jessica L Bagdanov
Trustee(s):
Howard B Grobstein (TR) Represented By David Seror
Jessica L Bagdanov
11:00 AM
From: 7/1/20 EH
Docket 102
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Docket 17
BACKGROUND
On June 23, 2020 ("Petition Date"), Lorenzo Esguerra Tizon (hereinafter "Debtor") filed a Chapter 7 voluntary petition. The commencement documents appear to be signed by someone other than Debtor, Romona Porras. No power attorney was presented to the Court.
Pursuant to 11 U.S.C. § 301, a petition under the Bankruptcy Code must be signed by the attorney of record or the party who is not represented by an attorney of record. Furthermore, if the Debtor is an infant or incompetent person, the petition may be signed by a representative, including a general guardian, committee, conservator or similar fiduciary, a next friend, or guardian ad litem. FBRP 1004.1.
The court may dismiss a case under Chapter 7 only after notice and a hearing and only for cause. 11 U.S.C. § 707(a). "The decision to dismiss a Chapter 7 case for cause rests within the sound discretion of the bankruptcy court." In re Innocenti, LLC, 2016 Bankr. Lexis 2337, *7 (Bankr. N.D. Cal. 2016) citing In re Hickman, 384 B.R. 832, 841 (B.A.P. 9th Cir. 2008). "If the bankruptcy filing was not authorized, there is cause to dismiss it." Id.
On June 25, 2020, The Court filed an order to show cause why this case should not be dismissed. Debtor’s counsel provided evidence that the individual who signed Debtor’s commencement document was his durable power of attorney, his sister, Romona Porras. Dkt. No. 23, Durable Power of Attorney.
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In addition, Ms. Porras declared that Debtor had given her the power of
attorney to handle his affairs. Dkt. No. 23, Decl. of Romona Tizon Porras. Debtor had given her authorization to file this petition. Id. She and Debtor gave Debtor’s counsel instruction to file the bankruptcy petition and schedules and to sign any needed documents or schedule on our behalf for the purpose of the bankruptcy. Id.
Unfortunately, Ms. Porras cannot visit the Debtor because his residence, located in a nursing home, has been locked down due to Covid-19. Id. However, she had been told that "he is still alive and his condition is stable." Id.
Opposition: None Service: Proper
Debtor has met the preponderance of the evidence standard on why his case should not be dismissed.
APPEARANCES REQUIRED.
Debtor(s):
Lorenzo Esguerra Tizon Represented By Sean Keshishyan
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01213 Pringle v. JPMorgan Chase Bank, National Association dba Chas
Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) From: 1/9/19, 3/13/19, 6/5/19, 9/4/19, 11/6/19, 4/1/20, 5/13/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
JPMorgan Chase Bank, National Represented By
Christopher O Rivas
Chase Bank USA, National Represented By Christopher O Rivas
Plaintiff(s):
John Pringle Represented By
Robert P Goe
Trustee(s):
John P Pringle (TR) Represented By Robert P Goe
2:00 PM
Charity J Manee
2:00 PM
Adv#: 6:20-01105 Frealy v. Riad
EH
Docket 1
- NONE LISTED -
Debtor(s):
Nevin Riad Represented By
Daniel S March
Defendant(s):
Nevin Riad Pro Se
Plaintiff(s):
Todd Frealy Represented By
Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:20-01104 Grobstein v. Torres
$350.00). Complaint for: (1) Avoidance of Actual Fraudulent Transfer [11 U.S.C.
§ 548(a)(1)(A)]; (2) Avoidance of Constructive Fraudulent Transfer [11 U.S.C. § 548(a)(1)(B)]; and (3) Recovery of Avoided Transfer [11 U.S.C. §550] (Attachments: # 1 Adversary Proceeding Cover Sheet) Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Madoyan, Noreen)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Ana Rosa Lopez Represented By Raymond Perez
Defendant(s):
Joshua Daniel Torres Represented By Raymond Perez
Plaintiff(s):
Howard B Grobstein Represented By Noreen A Madoyan Meghann A Triplett
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan
2:00 PM
Adv#: 6:19-01163 O'Neil et al v. Perez et al
From: 1/29/20, 5/27/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
Plaintiff(s):
Michael O'Neil Represented By
Edmond Richard McGuire
2:00 PM
Al Karlson Represented By
Edmond Richard McGuire
Dixie Karlson Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01103 Pavon-Arita v. Noble et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Phillip Carl Noble Represented By Todd L Turoci
Defendant(s):
Phillip Carl Noble Represented By Todd L Turoci
Juana Julian Noble Represented By Todd L Turoci
Joint Debtor(s):
Juana Julian Noble Represented By Todd L Turoci
Plaintiff(s):
Jose Pavon-Arita Represented By Gregory L Bosse
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:20-01106 Daff v. DeGracia
Avoidance of Intentional Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.07, 3439.08];
Avoidance of Constructive Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.05, 3439.07, 3439.08, 3439.09]; 3. Disallowance of Claims [11 U.S.C. §502(d)]; 4. Unjust Enrichment [11 U.S.C. § 105]; 5. Declaratory Relief [11 U.S.C. §§ 541, 544, 548; FRBP 7001(9)]; and 6. Turnover of Property of the Estate [11 U.S.C. § 542] Nature of Suit: (01 (Determination of removed claim or cause)),(13 (Recovery of money/property - 548 fraudulent transfer)),(91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)) (Iskander, Brandon)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Defendant(s):
Satoko DeGracia Represented By Scott Talkov
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
11:00 AM
Adv#: 6:20-01098 Janeke et al v. Hunter, Jr
EH
Docket 1
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Defendant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Plaintiff(s):
Charles Janeke Represented By
Joseph C Edmondson
1330 Ingraham Company, LLC Represented By
Joseph C Edmondson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/2/20 Also #3
EH
Docket 225
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Movant(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #2 EH
Docket 221
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/2/20 EH
Docket 76
- NONE LISTED -
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Movant(s):
Randal Scott Oakley Represented By Halli B Heston Halli B Heston Halli B Heston
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20
Also #6 & #7 EH
Docket 52
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20
Also #5 & #7 EH
Docket 44
On April 15, 2019, Mark & Elizabeth Swartz ("Debtors") filed a Chapter 13 voluntary petition. On June 21, 2019, The Bank of New York Mellon f/k/a The Bank of New York as successor Indenture trustee to JPMorgan Chase Bank, National Association for CWHEQ Revolving Home Equity Loan Trust, Series 2006-F ("Creditor") filed a proof of claim for a secured claim in the amount of $157,959.06 ("Claim 5").
On July 10, 2019, Debtors filed an objection to Claim 5. Debtors argued that the information filed in support of Claim 5 is inadequate pursuant to the Federal Rules of Bankruptcy Procedure, and that, as a result, Creditor has failed to meet its burden of proof. At the hearing of August 22, 2019, the Court noted that there appeared to be an error on the proof of service which resulted in Creditor’s notice address being misstated. For that reason, the Court continued the matter for proper service.
11:00 AM
On August 30, 2019, Debtors filed a renewed objection to Claim 5. The Court notes that notice and service are now proper.
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
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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 because such claim is contingent or unmatured;
FED. R. BANKR. P. Rule 3001(c)(2) identifies certain required information that a claimant must attach to a proof of claim in order for the claim to be afforded prima facie validity. In particular, the Court notes that Rule 3001(c)(2)(A) and (C) provide requirements related to the itemization of non-principal amounts and escrow amounts, respectively.
The Court finds Debtors’ assertion that the supporting information is inadequate to be well-founded. The mortgage proof of claim attachment includes the following information. Part 2 identifies a principal balance of $98,982.98, interest due of
$55,486.25, and fees and costs of $3,489.83. Part 3 identifies a pre-petition arrears of
$87,692.60, of which $84,202.77 was principal and $3,489.83 was the aforementioned costs. And Part 4 asserts that the month payment includes $607.39 for principal and interest and $549.90 for escrow.
11:00 AM
The two figures which do not appear to be justified in the supporting documentation are the $55,486.25 in interest and the $549.90 monthly payment for escrow. The Court notes that the loan payment history spreadsheet provided by Creditor does not contain any itemization for interest or escrow, and, furthermore, the entire column relating to accrued interest balance and accrued escrow balance is zeroed out.
Because Creditor has failed to separate principal, interest, and escrow, as directed by FED. R. BANKR. P. Rule 3001(c)(2), and, noting that Debtors have declared that there is no escrow account relating to the second mortgage, the Court is unable to determine the validity or amount of the prepetition default identified in column G of the loan payment history. The Court has also not been provided with any itemization or calculation of the interest amount, alleged to be $55,486.25.
As a result, the Court is inclined to reduce Claim 5 to $102,472.81, representing the principal balance and fees and costs due in part 2 of the loan payment history, with a prepetition arrearage amount of $0.
APPEARANCES REQUIRED.
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
11:00 AM
Movant(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Elizabeth M Swartz Represented By Joseph A Weber Joseph A Weber Fritz J Firman Fritz J Firman
PYOD LLC Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/11/19, 8/22/19, 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20
Also #5 & #6 EH
Docket 15
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 46
On November 13, 2019 (hereinafter "Petition Date"), Chris Dennis (hereinafter "Debtor") and Ami Dennis (hereinafter "Joint Debtor") (collectively hereinafter "Debtors") filed a Chapter 13 voluntary petition. On February 14, 2020, the Court confirmed the Chapter 13 plan for Debtors. Dkt. No. 31 After making the first monthly payment of $2,756.00, Debtors, pursuant to their plan, were required to pay
$2,925.00 for the next sixty months. Id. Pursuant to 11 U.S.C. § 1326(a), Debtors were aware that plan payments were due on the 13th day of each month. Dkt. No. 31; see also LBR 3015-1(k)(1)(A).
Debtors stated that they were current with their payments, but because of "an inadvertent typo, [they] forgot to put the proper case number down on [their] payment," the payments were returned to them. Dkt. No. 47, Decl. of Debtor in Support of Mot. to Vacate Dismissal Order of June 11, 2020, and Reinstate Case. In the Chapter 13 Trustee’s frequently asked questions posted on his website, the payment is delinquent unless it is "posted" to the correct case. FAQ. http://www.rodan13.com/index-4.html#Anchor-10749. The trustee’s counsel filed a motion to dismiss because of delinquent payments as the payments were returned to Debtors. Dkt. No. 38.
Debtors opposed the objection to the motion to dismiss their case. In their objection, Debtors allege that "because of an inadvertent typo, [they] forgot to put the
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proper case number down on [their] payment[s]." Dkt. No. 39, Decl. of Chris Dennis and Ami Dennis. Debtors, on June 5 and again on June 9, made payments totaling the delinquent amount. Dkt. No. 47, Decl. of Debtor in Support of Mot. to Vacate Dismissal Order of June 11, 2020, and Reinstate Case.
Nonetheless, "[i]f the Trustee has not posted the money to your case by the ‘action date’ stated on your motion, your case will be dismissed. FAQ. http://www.rodan13.com/index-4.html#Anchor-10749. That is what happened to Debtors. There resubmitted payments did not post until after the hearing date. Thus, their case was dismissed by the Court. Debtors now file this motion asking for the dismissal of their case be vacated due to inadvertence.
I. FRCP 60(b)(1)—Inadvertence
FED. R. CIV. P. Rule 60(b)(1) states:
mistake, inadvertence, surprise, or excusable neglect
The word "inadvertence" embraces the effect of "inattention, the result of carelessness, oversight, mistake, or fault of negligence and the condition or character of being inadvertent, inattentive, or heedless." Tremont Trust Co. v. Burack, 235 Mass. 398, 402 (Mass. 1920); see also E. Grace Communs. V. Besttransport.com,
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Inc., 2002-Ohio-7175, *P18 (7th Cir. 2002) (stating that "inadvertence" is "a result of inattention.").
It appears that Debtors’ error was inadvertent. By forgetting to place the proper case number on their payments, it precipitated a dismissal that Debtors actively tried to countermand. Furthermore, this motion was filed within a reasonable amount of time, eighteen days.
Debtors to confirm they have $5,850.00 to be tendered to the Trustee as well as Debtors’ 2019 State and Federal Tax Returns.
APPEARANCES REQUIRED.
Debtor(s):
Chris Dennis Represented By
Christopher Hewitt
Joint Debtor(s):
Ami Dennis Represented By
Christopher Hewitt
Movant(s):
Chris Dennis Represented By
Christopher Hewitt
11:00 AM
Ami Dennis Represented By
Christopher Hewitt Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 EH
Docket 49
- NONE LISTED -
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Movant(s):
Michael Brown Represented By Kevin Tang
Robin Brown Represented By
Kevin Tang Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #9 EH
Docket 45
- NONE LISTED -
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 1/30/20, 3/12/20, 4/16/20 EH
Docket 94
On November 11, 2015 ("Petition Date"), Eric Kessell ("Debtor") filed for Chapter 13 voluntary petition. In his commencement documents, Debtor listed the Internal Revenue Service ("IRS") as an unsecured creditor having a claim in the amount of $110,516.00—$65,266.00 not priority and 45,250.00 priority. On January 27, 2016, the IRS filed a claim, "Claim 5-1."
However, there was a discrepancy between what Debtor stated in his commencement document and what the IRS stated in its claim. The IRS listed
$94,707.90 of unsecured priority claim and $16,029.92 of unsecured general claim, totaling $110,737.82.
Debtor’s Chapter 13 plan, which was confirmed on December 29, 2015, scheduled to pay the unsecured priority claim over sixty months at a monthly payment of $754.17. Non-priority unsecured creditors where estimated to get a hundred cents on the dollar. Pursuant to the Chapter 13 plan, Debtor stated he will pay all post- confirmation tax liabilities in a timely manner directly to the appropriate taxing authorities.
While paying his pre-petition tax liability, the IRS alleges that Debtor failed to pay his post-petition taxes:
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Taxable Year | Taxes Due for that Year | Remaining Balance |
2015 | $25,712.00 | $29,775.96 |
2016 | $24,995.00 | $23,726.56 |
2017 | $20,669.00 | $24,019.91 |
2018 | $21,465.00 | $23,422.44 |
2019 | $23,611.00 | Not Calculated |
Specifically, the IRS claims that Debtor failed to make estimated payments for the taxable year 2019. The IRS states that Debtor’s alleged failure falls under 11 U.S.C. § 1307(c) as "bad faith" and it provides the "cause" to request the Court to dismiss Debtor’s Chapter 13 petition and implement a 180-day refiling bar.
I. Bad Faith
11 U.S.C § 1307(C):
"…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…or dismiss a case under this chapter…for cause, including…"
"A ‘party in interest’ is any party ‘who has an actual pecuniary interest in the case,’ ‘who has a practical stake in the outcome of a case,’ or ‘who will be impacted in any significant way in the case.’" In re Hardy, 589. B.R. 217 (Bankr. D. DC. 2018)
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(citing In re Sobczak, 369 B.R. 512, 518 (B.A.P. 9th Cir. 2007)). In this case, the IRS has standing because it has an actual pecuniary interest and it is a creditor. (In re De la Salle, 461 B.R. 593 (B.A.P 9th Cir.) (discerning no reason why creditors should not be included within the scope of party in interest for purposes of 11U.S.C. § 1307(c).
Subsection 1307(c) then proceeds to list eleven circumstances that would constitute cause. However, ‘bad faith’ is not listed. Nonetheless, bankruptcy courts "routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause.’" In re Goodvin, 548 B.R. 806, 811 (Bankr. N.D. IA. 2016) (quoting Marrama v. Citizens Bank, 549 U.S. 365, 372 (2007)).
Bad faith is determined by the totality of the circumstances test. In re Craighead, 377 B.R. 648, 654 (Bankr. N.D. Cal. 2007). Bankruptcy courts should consider the following circumstances in determining a cause for dismissal under Chapter 13 petition with prejudice for bad faith: (1) whether the debtor misrepresented facts in her petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed her Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filing and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. Ct. App. 1999).
Thus, the Court GRANTS this motion because there is cause shown, the nonpayment of post-petition taxes, to dismiss Debtor’s case with a re-filing bar of 180-days. Pursuant to LBR 9013-1(h), the Court may deem a failure to timely file and serve documents as consent to the granting or denial of the motion. Debtor, not responding to this motion, is deemed to have consent it.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Eric Kissell Represented By
William J Howell
Movant(s):
UNITED STATES OF AMERICA Represented By
Najah J Shariff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Debtor's Objection to Claim Also #13
EH
Docket 46
On March 2, 2020 (hereinafter the "Petition Date"), Elsy G. Mejia (hereinafter "Debtor") filed a Chapter 13 voluntary petition. On May 5, 2020, the Internal Revenue Service (hereinafter the "IRS") filed a claim—unsecured priority claim totaling
$23,631.70 and unsecured general claim totaling $1,566.81—subcategorized in this manner:
Kind of Tax | Tax Period | Date Tax Assessed | Tax Due | Interest to Petition Date |
Income | December 31, 2016 | June 5, 2017 | $1,442.00 | $358.99 |
Income | December 31, 2017 | June 4, 2018 | 5,149.00 | 536.06 |
Income | December 31, 2017 | February 24, 2020 | 697.00 | 72.56 |
Income | December 31, 2018 | June 3, 2019 | 6,140.00 | 290.09 |
Income | December 31, 2018 | Estimated - See Note | 8,946.00 | 0.00 |
11:00 AM
$22,374.00 $1,257.70 |
Dkt. No. 47-2, Ex. 1. The ‘note’ section states that "liability is estimated based on available information because the return has not been filed. This claim may be amended as necessary after the debtor files the review or provides other required information." Id.
Debtor, after filing her tax return, objects to $25,198.51 claim (hereinafter "Claim 7-1") filed by the IRS. Debtor states in this motion that the amount owed to the IRS is "much less than stated in the IRS claim." Dkt. No. 47-1. Debtor had filed her tax return for this year, which stated taxes owed in the amount of $4,478.00, not the estimated amount of $8,946.00. Id. at Memorandum of Points and Authorities. Debtor has provided a redacted version of her tax return supporting her claim. Id. at Ex. 2, Form 1040, line 23. Debtor is requesting for the entire claim to be disallowed, or in the alternative, that the IRS file an amended proof of claim to reflect the entire tax liability.
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). In this case, the IRS has filed Claim 7-1 that complies with the rules, giving rise to the presumption of validity.
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
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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)). Debtor has provided evidence, in the form of this year’s tax return, that refute the amount of the claim.
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. The IRS has not responding to this motion even though service was proper pursuant to 2002(g). Furthermore, pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this to be consent to the granting or denial of the motion.
For all the reasons mentioned above, the Court SUSTAINS the objection to the extent of reducing the IRS claim for $23,631.70 to $19,163.70, based on the reduced amount of 2019 tax liability.
APPERANCES REQUIRED.
Debtor(s):
Elsy G. Mejia Represented By
Maria C Hehr
Movant(s):
Elsy G. Mejia Represented By
11:00 AM
Trustee(s):
Maria C Hehr
Rod Danielson (TR) Pro Se
11:00 AM
Also #12 EH
Docket 0
- NONE LISTED -
Debtor(s):
Elsy G. Mejia Represented By
Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Joseph R. Hernandez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Maria Toscano Lawes Represented By William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jimmie Moore II Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eduardo Fabian Silis Represented By David Lozano
Joint Debtor(s):
Maria De La Asuncion Silis Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sylvia Irene Guzman Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cody Ray Miller Represented By Julie J Villalobos
Joint Debtor(s):
Jessica Dawn Miller Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Melvin T. Marks Represented By Natalie A Alvarado
Joint Debtor(s):
Maria Popeonas Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Luis Carranza Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Olivia Raydelle Ford Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Myrna Kay Sanchez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose S. Villalpando Represented By Maria C Hehr
Joint Debtor(s):
Maria C. Villalpando Represented By Maria C Hehr
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Ford Goering Jr. Represented By Heather J Canning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Terri Lynn Spears Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maria Carmen Banuelos Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lorena Sanchez Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mark Fredrick Davis Represented By Jenny L Doling
Joint Debtor(s):
Deborah Lynn Davis Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Monica Aguirre Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: STEVE ANTHONY CWYNAR
EH
Docket 18
Service: Shortened Notice – Proper Opposition: None
The Court has reviewed the motion. On July 7, 2020 (hereinafter "Petition Date"), Steve Anthony Cwynar (hereinafter "Debtor") filed a Chapter 13 voluntary petition. Pursuant to 11 U.S.C. § 362(c)(3), the automatic stay in respect to the Debtors expires on the thirtieth day after the filing of this petition, but it remains in respect to the estate.
Debtors had one prior Chapter 13 voluntary petition, case number 6:20-bk-13988-MH (hereinafter the "Prior Case"), pending and dismissed within a one-year period. In the Prior Case, Debtor’s credit counseling certificate had expired before he filed that petition. Dkt. No. 18-1, Decl. of Steve Anthony Cwynar in Support of Motion to Extend Stay. Debtor stated that he took the credit counseling course and received a certificate after completing it before filing the Prior Case. Id. He waited to file because he was "working with [his] mortgage lender on modification application, but the bank noticed a foreclosure sale date on [his] home necessitating a Chapter 13 filing." Id.
Debtor was also unaware that the certificate would expire after 180 days nor did his counsel "double check" the date of the credit counseling certificate. Id. at Pg. 5
11:00 AM
Debtor has filed this motion to continue the stay pursuant to 11. U.S.C § 362(c)(3)(B). Debtor’s case was dismissed because of his failure to provided required documents.
When such failure precipitates a dismissal, Debtor’s current petition must overcome a presumption of bad faith. 11 U.S.C. § 362 (c)(3)(C).
To overcome this presumption, the Debtor must provide clear and convincing evidence to the contrary. "[Clear and convincing evidence] is defined as that degree or measure of proof which will produce in the mind of the trier of fact, a firm belief or conviction that the allegations sought to be established as true; it is ‘evidence so clear, direct weight[,] and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.’" In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (citing Charles I, 332 B.R. 538, 542 (Bankr. S.D. TX. 2005)).
"Mere statements by the movement in the motion does not carry evidentiary weight. The movant must provide detailed, competent, evidence sufficient…to rebut the presumption of bad faith." In re Castaneda, 342 B.R. at 96. In this case, Debtor states that his presumption of good faith, overcoming the presumption of bad faith, is supported by him re-attaining the credit counseling certificate; and him proposing a plan, which would repay a hundred percent of all claims. Debtor provided the certification and his plan.
Based on the supplemental evidence, the Court is inclined to find that the Debtor has overcome, by clear and convincing evidence, the presumption under 11 U.S.C. § 362(c)(3)(C). The Motion is GRANTED. The stay will remain in place.
APPEARANCES REQUIRED.
Debtor(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
11:00 AM
Movant(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Silvia Alvarez Represented By
Benjamin A Yrungaray
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 110
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Zoraida Molina Represented By Samer A Nahas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 94
- NONE LISTED -
Debtor(s):
Jose Luis Rojas Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
Cirenio Merida Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 98
- 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
EH
Docket 56
- NONE LISTED -
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Henry Lopez Jr Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 36
- NONE LISTED -
Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Jose Luis Garcia Represented By Daniel King
Joint Debtor(s):
Yanira Valdez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- NONE LISTED -
Debtor(s):
Mark Allen Beatty Represented By Jeffrey D Larkin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 42
- NONE LISTED -
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
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Craig Edward Williams Represented By Julie J Villalobos
Joint Debtor(s):
Norma Geneva Williams Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
Jesus Samano Landa Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
From: 6/4/20 Also #49
EH
Docket 285
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Also #48 EH
Docket 277
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Adv#: 6:20-01051 Pringle v. Serour
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich,
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Aly Serour Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01052 Pringle v. Saber et al
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Am Saber Pro Se
Yousria Mikhail Guirguis Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
1:00 PM
David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01053 Pringle v. Bebawy et al
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amgad Bebawy Represented By Michael A Corfield
Reham Nakhil Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01054 Pringle v. ANRUF LLC et al
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
ANRUF LLC Represented By
Andy C Warshaw
Nadia Khalil Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01055 Pringle v. Mena
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Antonio Mena Represented By
Jeffrey Charles Bogert
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01056 Pringle v. Mettias
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Martin Amin Mettias Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01057 Pringle v. Makar
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ayad Makar Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01058 Pringle v. Gendy
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Saad Gendy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01059 Pringle v. Bishay
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Boles Bishay Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01060 Pringle v. Portrans
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Diamond Portrans Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01061 Pringle v. Mikhael
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Mikhael Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01062 Pringle v. Makkar
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Louis Makkar Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01063 Pringle v. Ghaly
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ramez Ghaly Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01064 Pringle v. Farah
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mina Farah Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01065 Pringle v. Yassa
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ehap Yassa Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01066 Pringle v. Abdelmessih
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Noshi Abdelmessih Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01067 Pringle v. Eskander
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Emad Eskander Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01068 Pringle v. Gerges
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Rafat Gerges Represented By
Louis J Esbin
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01069 Pringle v. Ghobrial
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fared Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01070 Pringle v. Haroun
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fouad Zikry Haroun Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01071 Pringle v. Youssef
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Mouric Zake Youssef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01072 Pringle v. Goldvilla
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01074 Pringle v. Ghobrial
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ishak Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01075 Pringle v. Rouse
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
James Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc.
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John 20/20 Enterprises, Inc. Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
1:00 PM
David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01077 Pringle v. Youssef et al
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John Maurice Youssef Pro Se
Sally Yo Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
1:00 PM
David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01078 Pringle v. Peng
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich,
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01079 Pringle v. Kodsy
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Karem Fayez Kodsy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01080 Pringle v. Rouse
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Lana Lee Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01081 Pringle v. Labib et al
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Labib Represented By
Michael A Corfield
Khair Labib Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01082 Pringle v. Wagdy
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Wagdy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01083 Pringle v. Eskarous
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01084 Pringle v. Solomen
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Marcos Solomen Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01085 Pringle v. Khozam
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Margaret Khozam Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01086 Pringle v. Zakhary
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Welliam Aziz Zakhary Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01087 Pringle v. Zumut et al
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ray Zumut Pro Se
Mary Zumut Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
1:00 PM
David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01088 Pringle v. Noshy
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Noshy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01089 Pringle v. Barsoom
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Roshdy Wahba Barsoom Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01090 Pringle v. Sawires
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sanad Sawires Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01091 Pringle v. Beshai
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David) (STANDSTILL AGREEMENT UNTIL 9/16/20)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sarwat Beshai Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01092 Pringle v. Dawoud
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sohir Gendy Gerges Dawoud Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich
1:00 PM
Reem J Bello
1:00 PM
Adv#: 6:20-01093 Pringle v. St. George Medical Office L.L.C.
(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
St. George Medical Office L.L.C. Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
1:00 PM
David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01094 Pringle v. Wextron Ltd
U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Wextron Ltd Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
1:00 PM
Adv#: 6:20-01095 Pringle v. Fannyan
U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Zahra Fannyan Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
11:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 6/9/20, 6/30/20 EH
Docket 153
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw
11:00 AM
Movant(s):
HSBC Bank USA, National Represented By Darlene C Vigil Gilbert R Yabes
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CITIBANK, N.A.
EH
Docket 48
- NONE LISTED -
Debtor(s):
Feliciano Julian De Vera Represented By Lawrence B Yang
Joint Debtor(s):
Pacita DelaCruz De Vera Represented By Lawrence B Yang
Movant(s):
Citibank, N.A., Not Individually but Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY FSB
EH
Docket 67
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Wilmington Savings Fund Society (hereinafter "FSB") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Fixed/Adjustable Rate Note Interest Only Fixed Period, Deed of Trust, Planned Unit Development Rider, California Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments, FSB has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has not opposed this motion. Thus, he has not met his burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. The co- debtor stay of 11 U.S.C. § 1301(a) is terminated. DENY 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):
Johanna R. Lagandaon Represented By Julie J Villalobos
Movant(s):
Wilmington Savings Fund Society, Represented By
Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 63
Service: Proper Opposition: Debtors
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association (hereinafter "U.S. Bank") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Equity Line of Credit Agreement and Disclosure Statement, Deed of Trust, and the ledger of loan payments, U.S. Bank has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash
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payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim that on July 10, 2020, they made a payment of $1,000. Dkt. No. 65, Pg. 2. Debtor are "looking to enter into an adequate protection order" and they "intend to continue making all of their regular post-petition payments in a timely fashion. Id.
Parties are to abreast the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ricardo Munoz Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Roseann Munoz Represented By Michael E Clark Barry E Borowitz
Movant(s):
U.S. Bank National Association Represented By Mukta Suri Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ALLY BANK
EH
Docket 95
- NONE LISTED -
Debtor(s):
Eddie Garcia Represented By
Paul Y Lee
Joint Debtor(s):
Martha Garcia Represented By Paul Y Lee
Movant(s):
Ally Bank c/o Severson & Werson, Represented By
Adam N Barasch
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTCHE BANK NATIONAL TRUST COMPANY
EH
Docket 60
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Deutsche Bank National Trust Company (hereinafter "Deutsche Bank") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-* 29 (Bankr. E.D. PA, 1993).
By providing the Interest-Only Period Adjustable Rate Note, Deed of Trust, Adjustable Rate Rider, Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments, Deutsche Bank has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have not opposed this motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. The co- debtor stay of 11 U.S.C. § 1301(a) is terminated. DENY 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):
Rogelio Ramos Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Escobar Represented By Rebecca Tomilowitz
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
Docket 38
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. PennyMac Loan Services, LLC (hereinafter "PennyMac") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments, PennyMac has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtor, to show that the collateral is
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not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has not opposed this motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. DENY 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):
Noemi Patricia Nuno Represented By Brian J Soo-Hoo
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA LEASE TRUST
EH
Docket 39
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1), "cause" must be shown. Toyota Lease Trust (hereinafter "Toyota") claims cause has been shown because Debtors lease has matured, and they failed to exercise their purchase option. By providing the Lease Agreement, Certificate of Title, and Lease Status, Toyota has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Presco, 2007 Bankr. Lexis 5542 (Bankr. W.D. PA. 2009) (stating that a Debtors failure to surrender their leased vehicle and to give notice to exercise the purchase option when the lease matured was sufficient to show cause.).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have not opposed this motion. Thus, they have not met their burden. Pursuant
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to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 6. Deny request under ¶ 15 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):
Joshua Michael Thomson Represented By Edward G Topolski
Joint Debtor(s):
Katherine Naomi Thomson Represented By Edward G Topolski
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 37
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association, as Indenture Trustee, on behalf of the holder of Terwin Mortgage Trust (hereinafter "U.S. Bank - Terwin") claims that post-petition post- confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Note, Balloon Note Addendum Second Mortgage, Deed of Trust, Assignment of Deed of Trust, Modification Agreement and the ledger of loan payments, U.S. Bank - Terwin has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim (1) more payments have been made to U.S. Bank – Terwin than the motion accounts for, and (2) the property is fully provided for in the Chapter 13 plan. Dkt. No. 39. Pg. 3. Debtors also assert that all post-petition arrearages will be cured by the hearing date and all post-petition plan payments are current. Id. Debtors allege that movant’s counsel informed Debtors’ counsel that "the Debtors have brought the loan post-petition current." Id.
The parties to confirm whether Debtors are current. APPEARANCES REQUIRED.
Debtor(s):
Michael Lawrence Ricks Represented By
Richard Komisars III
Joint Debtor(s):
Debra Jean Ricks Represented By
Richard Komisars III
Movant(s):
U. S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BOSCO CREDIT LLC
From: 6/30/20 EH
Docket 54
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Bosco Credit, LLC (hereinafter "Bosco Credit") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Home Equity Line of Credit Agreement and Disclosure Statement, Variable Interest Rate Revolving Line of Creed Deed of Trust, the Assignment of Deed to Trust, and the ledger of loan payments, Bosco Credit has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D.
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Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 56. Debtor, Jerry Melendrez, declares that on June 9, 2020, he paid $1,588.00 and on June 12, 2020, he paid $1,748.00 to Bosco Credit. Id. at Decl. of Jerry Melendrez. He provided a confirmation number for each payment. He also claims that, by the hearing date, he will be current and the property is necessary for an effective reorganization.
Parties are to inform the Court of the current status of the delinquencies.
APPEARANCES REQUIRED.
Debtor(s):
Jerry Melendrez Represented By Todd L Turoci
Joint Debtor(s):
Laura Therese Melendrez Represented By Todd L Turoci
Movant(s):
BOSCO CREDIT LLC Represented By Kelsey X Luu James F Lewin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUND SOCIETY, FSB
EH
Docket 61
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Selene Finance LP (hereinafter "Selene Finance") claims that post-petition post-confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Fixed/Adjustable Rate Note Interest Only Fixed Period, Deed of Trust, California Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Modification Agreement, and the ledger of loan payments, Selene Finance has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 63. Joint Debtor declared that she would like to enter into an adequate protection agreement in which she pays a lump sum on or before the date of the hearing on this matter and pays the remainder over a six- month timeframe in equal installments on the fifteenth of each month. Id. at Decl. in Support of Opposition to Motion for Relief from Automatic Stay.
The parties to update the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Movant(s):
Selene as servicer for Wilmington Represented By
Christina J Khil Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 5/26/20, 6/30/20 EH
Docket 25
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Hernan Pizzulin Represented By Tom A Moore
Joint Debtor(s):
Tonya Thomas Represented By Tom A Moore
Movant(s):
Bank of America, N.A. Represented By Darlene C Vigil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20, 6/30/20 EH
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing
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Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion.
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APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 9
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Toyota Motor Credit Corporation (hereinafter "Toyota Motor") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v.
Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Title Detail, Debtor’s intent to surrender the vehicle, Schedule A/B of Debtor’s commencement documents, and the Loan Status, Toyota Motor has shown that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—
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must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Toyota Motor has met its burden to show that Debtor has no equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Debtor has not responded to this motion, and Debtor has indicated his intent to surrender the vehicle. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)
stay. GRANT request under ¶ 6. DENY request under ¶ 15 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):
Patricia Mae Broad Represented By Peter S Gold
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
Docket 11
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Ford Motor Credit Company, LLC (hereinafter "Ford Motor") claims that there is a lack of adequate protection of its interest in its property. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v.
Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing the Retail Installment Sale Contract, Certificate of Title, and NADA Used Car Guide, Ford Motor has shown that its interest is not adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization—
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must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Ford Motor has met its burden to show that Debtor has no equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Because a Chapter 7 proceeding does not involve a reorganization, it is generally presumed that the second condition under 11 U.S.C. § 362(d)(2)(B) is met in a Chapter 7 proceeding." In re Williamson, 2009 Bankr. Lexis 5571, *5 (Bankr. S.D. Ga. 2009). Debtor has not responded to this motion. Thus, he has not met his burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C.
§§ 362(d)(1) and 362(d)(2). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶ 2. DENY 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):
Nick A Padilla Represented By Paul Y Lee
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
From: 3/31/20, 4/21/20, 5/26/20, 6/30/20, 7/14/20
EH
Docket 64
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
2:00 PM
From: 3/31/20, 5/12/20 EH
Docket 278
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also # 19 & # 20 EH
Docket 107
- NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
From:10/1/19, 11/12/19, 12/10/19, 1/7/20, 3/10/20, 3/24/20, 4/21/20
Also # 18 & # 20 EH
Docket 4
NONE LISTED -
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
Also # 18 & # 19 EH
Docket 128
On August 27, 2019, Jauregui Trucking, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On October 7, 2019, Debtor filed a notice of bar date that provided for a deadline of February 24, 2020 for claims of governmental units.
On January 9, 2020, the Employment Development Department (the "EDD") filed a proof of claim for a claim in the amount $253,545.74, with $226,229.03 identified as entitled to priority ("Claim 9"). On March 31, 2020, Debtor filed an objection to Claim 9, arguing that the EDD had improperly classified a number of Debtor’s drivers as employees. On April 15, 2020, the Court approved the parties’ stipulation to continue the hearing on the claim objection to May 26, 2020; the Court notes that the original hearing was not properly noticed pursuant to FED. R. BANKR. P. Rule 3007(a) (1). On May 11, 2020, the EDD filed its opposition. On May 19, 2020, Debtor filed its reply.
2:00 PM
Debtor argues that "almost all of them [the drivers listed on the EDD’s Notice of Assessment] are owner-operators and not Debtor’s employees." Debtor contends that "[t]he EDD failed to conduct any investigation to determine which drivers were Debtor’s employees and which were owner-operators and thus independent contractors." The Court notes that Debtor had petitioned the EDD’s notice of assessment, and that it appears that an evidentiary hearing was pending at the time Debtor filed bankruptcy but has since been stayed.
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). Tax claims, not having been based on a writing, are entitled to presumptive validity when properly filed. See In re Los Angeles Int’l Airport Assocs., 106 F.3d 1479, 1480 (9th Cir. 1997). 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
2:00 PM
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)).
Typically, when 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). Contrary to the argument raised in Debtor’s reply, in the context of a tax claim, however, the burden of proof is assigned by the underlying substantive law. See Raleigh v. Ill. Dep’t of Revenue, 530
U.S. 15, 26 (2000). In this case, that means the burden of proof is assigned to Debtor.
Debtor has provided evidence supporting its contention that thirteen different individuals, listed in pages 4-5 of the reply filed as docket number 152, are not properly characterized as employees. As noted by Debtor in the reply, the question of whether truck drivers are employees or independent contractors is currently the subject of litigation in California. Without concluding that Debtor has provided the correct legal standard, the Court does not have the information necessary to apply the Borello test or the ABC test1, outlined in page 6 of Debtor’s reply.
Nevertheless, the Court does conclude that Debtor has provided sufficient evidence to overcome the presumptive validity of the EDD claim and warrant the setting of an evidentiary hearing pursuant to Local Rule 3007-1(b)(5). Specifically, the Court concludes that the evidence submitted by Debtor is sufficient to raise a genuine question regarding whether the individuals identified are properly characterized as employees given the holistic nature of the Borello test and the evidence submitted by
2:00 PM
the EDD.
As Debtor presented its evidence on the merits in its reply, the Court is inclined to either allow supplemental briefing by the EDD or set an evidentiary hearing pursuant to Local Rule 3007-1(b)(5).
APPEARANCES REQUIRED.
Debtor(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
Movant(s):
Jauregui Trucking, Inc. Represented By Andrew S Bisom
2:00 PM
Requiring Status Report EH
Docket 29
NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
11:00 AM
Docket 784
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: $ 27,964.57 Trustee Expenses: $ 288.86
Attorney Fees: $ 166,396.46 Attorney Costs: $ 16,994.66
Accountant Fees: $9,220.00 Accountant Costs: $889.90
Court Charges: $2,100 Franchise Tax Board: $5,763.86
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):
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
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 and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,473.80 Trustee Expenses: $ 13.20
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 R. Lezama Represented By
Jennifer Ann Aragon - SUSPENDED -
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Docket 32
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: $ 1,250.00 Trustee Expenses: $ 167.96
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):
Stuart Bremner Represented By Christopher Hewitt
Joint Debtor(s):
Sarah Bremner Represented By Christopher Hewitt
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 669
NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky
11:00 AM
Jason B Komorsky
11:00 AM
Docket 12
NONE LISTED -
Debtor(s):
Alfredo Jimenez Sr Represented By Sundee M Teeple
Joint Debtor(s):
Leticia Reynoso Jimenez Represented By Sundee M Teeple
Movant(s):
Alfredo Jimenez Sr Represented By Sundee M Teeple Sundee M Teeple
Leticia Reynoso Jimenez Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
Docket 18
On April 2, 2020, Hector & Ruth Meza ("Debtors") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 16602 Colonial Dr., Fontana, CA 92336 (the "Property").
On May 5, 2020, Trustee filed a no-asset report. The next day, Trustee filed an objection to Debtor’s claimed homestead exemption. Trustee argues that Debtor has not established that she is entitled to claim the increased homestead exemption set forth in CAL. CODE CIV. P. § 704.730(a)(3)(B).
Burden of Proof
11:00 AM
The initial burden is on the objecting party:
As the Supreme Court has recognized, bankruptcy exemptions are authorized and regulated by Congress in § 522 of the Bankruptcy Code. Although state law may control the ‘nature and extent’ of state law exemptions, subject to the limitations set forth in the Bankruptcy Code, the manner in which such exemptions are to be claimed, set apart, and awarded, is regulated and determined by the federal courts, as a matter of procedure in the court of bankruptcy administration, as to which they are not bound or limited by state decisions or statutes. Because Congress has regulated the allowance of exemptions in bankruptcy, the Code and Rules may alter burdens of proof relating to exemptions, even if those burdens are part of the "substantive" rights under state law. In implementing the provisions of § 522(l), Rule 4003(c) places the burden of proof on the objecting party.
In re Nicholson, 435 B.R. 622, 633 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds). In support of the above excerpt, In re Nicholson cited the Supreme Court’s statement that "Congress of course may do what it likes with entitlements in bankruptcy," and the Advisory Committee Note to Rule 4003(c) which states that "This rule is derived from § 522(l) of the Code." Id.; see also 9 COLLIER’S ON BANKRUPTCY ¶ 4003.04 (16th ed. 2019) ("[T]he better-reasoned decisions recognize that the rule simply reflects the burden placed on an objector by section 522(l), a federal statute that overrides state law on this issue under the Supremacy Clause.").
As outlined below, the Court concludes that the presence of a legitimate argument that FED. R. BANKR. P. Rule 4003(c) is still valid forces this Court to continue applying the rule.
The Supreme Court drafts the Federal Rules of Bankruptcy Procedure. Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15 (2000) was decided in 2000, so the Supreme Court has
11:00 AM
had nineteen years, during which time there have been many rule changes, to modify or eliminate FED. R. BANKR. P. Rule 4003(c). It has not done so. Additionally, the Supreme Court, in Raleigh, stated that the burden of proof has long been considered "substantive" --- citing pre-World War 2 cases in support of the proposition. Those cases long predate FED. R. BANKR. P. Rule 4003(c), yet the Supreme Court drafted the rule despite the presence of those cases. Given these observations and the ambiguity regarding the continuing validity of FED. R. BANKR. P. Rule 4003(c), this Court would be remiss to invalidate a binding rule of bankruptcy procedure on the basis that the Supreme Court violated its own caselaw. This is especially so when, to this Court’s knowledge, every Court of Appeal that has cited the burden of proof for an objection to a homestead exemption has continued to refer to FED. R. BANKR. P. Rule 4003(c) even after Raleigh.
Further, this Court agrees with the analysis set forth in In re Weatherspoon, 605 B.R. 472, 482 (Bankr. S.D. Ohio 2019):
Although Raleigh was decided in the context of an objection to a proof of claim and did not involve Bankruptcy Rule 4003(c), some bankruptcy courts have questioned the continued viability of the rule in light of the Supreme Court’s holding in that case. These cases are well- reasoned, and Ohio courts place the burden of proof on the party claiming the exemption. Thus, it could be argued that here the Debtor should shoulder the burden of proving the exemption was properly claimed. But even if decisions such as Tallerico are correctly decided, it is not for this Court to determine that Raleigh overruled Zingale by implication; instead, it must follow Zingale until the Supreme Court or the Sixth Circuit overrules it.
If trial courts disregard binding precedent and binding legal provisions on the basis that they have been implicitly overruled, especially when there are legitimate arguments to the contrary, judicial hierarchy and the entire doctrine of legal precedent would be undermined.
11:00 AM
Merits
Here, as stated by Trustee, CAL. CODE CIV. P. § 704.730(a)(3)(B) provides a
$175,000 homestead exemption for "[a] person physically or mentally disabled who as a result of that disability is unable to engage in substantial gainful employment."
Here, Trustee has submitted no meaningful evidence in support of his objection to Debtors’ claimed homestead exemption.
Additionally, there is no authority presented for the proposition that the disability has to be permanent. And last, Trustee is incorrect that Debtors are receiving unemployment benefits – Schedule I does not list any.
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Hector Meza Represented By
Steven M Gluck
Joint Debtor(s):
Ruth Meza Represented By
Steven M Gluck
11:00 AM
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19, 1/29/20, 5/27/20
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):
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#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19, 1/29/20, 5/27/20
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):
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):
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#: 6:14-01248 Revere Financial Corporation, a California corpora v. Roger, MD
From: 4/25/18, 6/13/18, 8/22/18, 10/31/18, 7/31/19, 9/11/19, 11/20/19, 1/29/20, 5/27/20
EH
Docket 82
NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
Franklin R Fraley Jr
2:00 PM
Trustee(s):
Anthony J Napolitano
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19, 1/29/20, 5/27/20
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
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, 11/27/18, 2/26/19, 4/10/19, 6/12/19,
8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
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, 9/25/18, 11/27/18, 2/26/19,
4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 3/4/20, 4/29/20
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
2:00 PM
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
Also #14 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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
Also #13 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#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
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
2:00 PM
Jason Balitzer 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, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
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
2:00 PM
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
From: 7/10/18, 2/27/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
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 Mark S Horoupian
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#: 6:19-01122 Whitmore v. Labor Commissioner of the State of California
From: 11/6/19, 1/15/20, 3/25/20, 4/1/20, 5/27/20 EH
Docket 1
NONE LISTED -
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Defendant(s):
Labor Commissioner of the State of Represented By
Melvin Yee
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#: 6:18-01063 Chen et al v. Bastorous et al
(Dismissed as to Bernadette Shenouda 1/2/19)
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20, 3/18/20, 7/15/20
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):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20, 4/15/20, 7/1/20
Also #21 EH
Docket 1
4/15/20
Opposition: None Service: Proper
Pursuant to the stipulation agreement between Bankers Health Care Group, LLC, and Vance Zachary Johnson, the Court GRANTS this stipulation to continue Status Conference to July 1, 2020. A Status Report is due on June 24, 2020.
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):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
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) Represented By Monica Y Kim
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
EH
Docket 87
NONE LISTED -
Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Defendant(s):
Vance Zachary Johnson Represented By Robert P Goe Stephen Reider
Movant(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Plaintiff(s):
Bankers Healthcare Group, LLC Represented By
Todd L Turoci
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
11:00 AM
Docket 113
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
Docket 45
Debtor(s):
Paul Salgado Represented By
Jenny L Doling John P Dolan
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling John P Dolan
Movant(s):
Paul Salgado Represented By
Jenny L Doling John P Dolan
Paula Salgado Represented By Jenny L Doling John P Dolan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:20-01098 Janeke et al v. Hunter, Jr
EH
Docket 9
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Defendant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Movant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle James D. Hornbuckle
Plaintiff(s):
Charles Janeke Represented By
Joseph C Edmondson
1330 Ingraham Company, LLC Represented By
Joseph C Edmondson
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
MOVANT: STEVE ANTHONY CWYNAR
From: 7/23/20 EH
Docket 18
Debtor(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
From: 3/31/20, 4/21/20, 5/26/20, 6/30/20, 7/14/20, 7/28/20
EH
Docket 64
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
12:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
Docket 35
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
12:00 PM
Adv#: 6:14-01070 Law Office of Andrew S. Bisom et al v. Howell
Docket 241
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
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 8
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Jose L. Chavez Represented By Kevin Tang
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 12
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on May 14, 2020, less than one year before the instant case was filed. Debtor not having filed a motion to continue the automatic stay, the automatic stay expired on August 1, 2020. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Francisco Javier Escareno Represented By Brian J Soo-Hoo
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FIRST TECH FEDERAL CREDIT UNION
EH
Docket 9
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Jaime Valdez Represented By
James P Doan
Movant(s):
First Tech Federal Credit Union Represented By Arnold L Graff
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC
EH
Docket 7
11 U.S.C. § 365(p)(1) provides: "If a lease of personal property is rejected or not timely assumed by the trustee under subsection (d), the leased property is no longer property of the estate and the stay under section 362(a) is automatically terminated." Here, the deadline for Trustee to assume the lease under 11 U.S.C. § 365(d) was August 17, 2020. The deadline having passed, the automatic stay has terminated by operation of law pursuant to § 365(p). Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Jorge Cazarez Represented By Edgar P Lombera
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
Docket 9
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
David F Ruvalcaba Represented By Edgar P Lombera
Movant(s):
Exeter Finance, LLC Represented By Marjorie M Johnson
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: BMW BANK OF NORTH AMERICA
EH
Docket 10
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Nina C Kwak Represented By
Paul Y Lee
Movant(s):
BMW Bank of North America Represented By Marjorie M Johnson
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: ONEMAIN FINANCIAL GROUP LLC
EH
Docket 14
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-DENY request for relief from stay pursuant to 11 U.S.C. § 362(d)(2) for lack of cause shown
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶ 2
APPEARANCES REQUIRED.
Debtor(s):
Shirley Henrietta Harris Represented By
Ethan Kiwhan Chin
Movant(s):
THE DUNNING LAW FIRM APC Represented By
James MacLeod
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 9
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Ashley Ann Park Represented By Krystina T Tran
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20, 6/30/20, 7/28/20 EH
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing
11:00 AM
Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion.
11:00 AM
APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
EH
Docket 47
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on January 8, 2020, less than one year before the instant case was filed. Debtor’s motion to continue the automatic stay having been denied at a hearing held on February 11, 2020, the automatic stay expired on February 13, 2020. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Jeff Book Represented By
Eric C Morris
Movant(s):
U.S. Bank National Association Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
EH
Docket 34
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Troy Brooks Represented By
Kevin Tang
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: FIREFIGHTERS FIRST CREDIT UNION
EH
Docket 26
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Rachell E Stirrat Represented By Neil R Hedtke
Movant(s):
Firefighters First Credit Union Represented By Alana B Anaya
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 5/19/20, 6/30/20 EH
Docket 35
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C § 362(d)(1) "cause" must be shown. U.S. Bank, National Association (hereinafter "U.S. Bank"), as trustee on behalf of the holders of the Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates, Series 20070-OPX, claims that post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
Debtor must show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens
11:00 AM
or otherwise to overcome 11. U.S.C. § 362(d)(1).
Debtor has not opposed the motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. §§ 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. Grant relief pursuant to ¶¶ 2 and 3. Co- debtor stay pursuant to 11. U.S.C. § 1301 is terminated.
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):
Florence Marie Rodriguez Represented By Steven A Alpert
Movant(s):
U.S. Bank National Association as Represented By
Nancy L Lee Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC dba SHELLPOINT MORTGAGE SERVICING
From: 7/21/20 EH
Docket 36
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley Michael Smith
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto James F Lewin
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK TRUST NATIONAL ASSOCIATION
EH
Docket 49
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on August 2, 2019, less than one year before the instant case was filed. Debtor not having filed a motion to continue the automatic stay, the automatic stay expired on October 25, 2019.
Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
James J. Ysais Represented By
James D. Hornbuckle
Movant(s):
US Bank Trust NA Represented By
Lemuel Bryant Jaquez Angie M Marth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 7/21/20 EH
Docket 44
Service: Proper Opposition: Late
Parties to apprise Court of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Josephine H Holguin Represented By Richard L Barrett
Movant(s):
Deutsche Bank National Trust Represented By Bonni S Mantovani
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
EH
Docket 38
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Movant(s):
Wilmington Trust National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 49
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Hong Song Represented By
Jonathan J. Lo Michael Y Lo
Joint Debtor(s):
XiaoTao Zhai Represented By Jonathan J. Lo
11:00 AM
Movant(s):
Michael Y Lo
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BOSCO CREDIT LLC
From: 6/30/20, 7/28/20 EH
Docket 54
Service: Proper Opposition: Debtor
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Bosco Credit, LLC (hereinafter "Bosco Credit") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Home Equity Line of Credit Agreement and Disclosure Statement, Variable Interest Rate Revolving Line of Creed Deed of Trust, the Assignment of Deed to Trust, and the ledger of loan payments, Bosco Credit has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D.
11:00 AM
Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 56. Debtor, Jerry Melendrez, declares that on June 9, 2020, he paid $1,588.00 and on June 12, 2020, he paid $1,748.00 to Bosco Credit. Id. at Decl. of Jerry Melendrez. He provided a confirmation number for each payment. He also claims that, by the hearing date, he will be current and the property is necessary for an effective reorganization.
Parties are to inform the Court of the current status of the delinquencies.
APPEARANCES REQUIRED.
Debtor(s):
Jerry Melendrez Represented By Todd L Turoci
Joint Debtor(s):
Laura Therese Melendrez Represented By Todd L Turoci
Movant(s):
BOSCO CREDIT LLC Represented By Kelsey X Luu James F Lewin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/28/20 EH
Docket 37
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association, as Indenture Trustee, on behalf of the holder of Terwin Mortgage Trust (hereinafter "U.S. Bank - Terwin") claims that post-petition post- confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Note, Balloon Note Addendum Second Mortgage, Deed of Trust, Assignment of Deed of Trust, Modification Agreement and the ledger of loan
11:00 AM
payments, U.S. Bank - Terwin has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim (1) more payments have been made to U.S. Bank – Terwin than the motion accounts for, and (2) the property is fully provided for in the Chapter 13 plan. Dkt. No. 39. Pg. 3. Debtors also assert that all post-petition arrearages will be cured by the hearing date and all post-petition plan payments are current. Id. Debtors allege that movant’s counsel informed Debtors’ counsel that "the Debtors have brought the loan post-petition current." Id.
The parties to confirm whether Debtors are current. APPEARANCES REQUIRED.
Debtor(s):
Michael Lawrence Ricks Represented By
Richard Komisars III
Joint Debtor(s):
Debra Jean Ricks Represented By
Richard Komisars III
Movant(s):
U. S. Bank National Association, as Represented By
Kirsten Martinez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 37
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Julian Keith A. Vernon Represented By
Stuart G Steingraber
Joint Debtor(s):
Marie A. Vernon Represented By
Stuart G Steingraber
11:00 AM
Movant(s):
U.S. Bank National Association, as Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK UNITED NA
EH
Docket 48
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Golda Y Williams Represented By Daniel King
Movant(s):
BANK UNITED N.A. Represented By Julian T Cotton Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 7/21/20 EH
Docket 82
Service: Proper Opposition: Yes
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
11:00 AM
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Natalie E Lea
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
From: 7/28/20 EH
Docket 38
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. PennyMac Loan Services, LLC (hereinafter "PennyMac") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments, PennyMac has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtor has not opposed this motion. Thus, she has not met her burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1). GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. DENY 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):
Noemi Patricia Nuno Represented By Brian J Soo-Hoo
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
From: 6/30/20 EH
Docket 65
NONE LISTED -
Debtor(s):
Gregory Lincoln Represented By Dana Travis
Joint Debtor(s):
Norma Araceli Lincoln Represented By Dana Travis
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
From: 7/21/20 EH
Docket 57
Service: Proper Opposition: None
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-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):
Neil Gary Moon Represented By Jenny L Doling
11:00 AM
Joint Debtor(s):
Mary Laura Moon Represented By Jenny L Doling
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
April Harriott Keith Labell Theron S Covey Eric P Enciso Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, NA
EH
Docket 58
Subject to Debtor having cured the delinquency and/or the parties have reached a forbearance agreement or an adequate protection stipulation, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT relief from § 1301(a) co-debtor stay
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶ 2
-DENY request under ¶ 3 for lack of cause shown
APPEARANCES REQUIRED.
Debtor(s):
Efrain Figueroa Represented By
Raj T Wadhwani
Movant(s):
Bank of America, N.A. Represented By
11:00 AM
Trustee(s):
William F McDonald III Anna Landa
Bonni S Mantovani Cassandra J Richey Alexander G Meissner Diana Torres-Brito Christopher Giacinto Julian T Cotton
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 101
Debtors having received their discharges in their Chapter 13 case, the property of the estate has revested in Debtors pursuant to Section VI of the confirmed Chapter 13 plan, and the automatic stay has terminated as a matter of law pursuant to 11 U.S.C. § 362(c)(1) and § 362(c)(2)(C). Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
David J Macias Represented By Marjorie M Johnson
Joint Debtor(s):
Martha Macias Represented By Marjorie M Johnson
11:00 AM
Movant(s):
The Bank of New York Mellon Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 12
NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
Movant(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
Also #29 EH
Docket 1
NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
MOVANT: HENRY WILLIAM SHELTON, TRUSTEE FO THE HENRY WILLIAM SHELTON TRUST DATED NOVEMBER 22, 2019 AS TO AN UNDIVIDED 28.37%
Also #32 EH
Docket 32
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (4) based upon bad faith. Specifically, the Court notes that this case was filed only thirteen days after the dismissal of Debtor’s previous case, and Movant has provided evidence that Debtor’s interest in the subject property, if any, only arises from the recordation of an unauthorized short form deed of trust recorded during the pendency of the earlier case. Additionally, the Court notes that Debtor has not scheduled the subject property.
Finally, the Court notes that on July 27, 2020, UST filed a notice identifying Debtor’s failure to perform its duties under the Bankruptcy Code.
-DENY request for relief from stay pursuant to 11 U.S.C. § 362(d)(2) based on lack of cause shown.
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶ 2
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-DENY request for annulment of the automatic stay based on Movant’s failure to provide any evidence relating to or supporting the request.
APPEARANCES REQUIRED.
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
Movant(s):
Henry William Shelton, Trustee of Represented By
Bonni S Mantovani
2:00 PM
From: 7/28/20 Also #31
EH
Docket 29
NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
2:00 PM
From: 2/4/20, 5/5/20 EH
Docket 3
NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
10:00 AM
EH
Docket 8
NONE LISTED -
Debtor(s):
Esmeralda Gonzalez Represented By Joseph C Rosenblit
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
Cristina L Talamantes Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 23
NONE LISTED -
Debtor(s):
Jose Luis Raygoza Pro Se
Joint Debtor(s):
Vera Helen Raygoza Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 9
NONE LISTED -
Debtor(s):
Sandra Valladares Represented By Marlin Branstetter
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
EH
Docket 11
NONE LISTED -
Debtor(s):
Penni Renee Anwar Represented By Daniel King
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Docket 32
BACKGROUND
On January 25, 2012 (hereinafter the "Petition Date"), James S. Ash, Senior (hereinafter "Debtor") and Stephanie A. Ash (hereinafter "Joint Debtor") (collectively hereinafter "Debtors") filed for Chapter 7 voluntary petition.
In their commencement document, Debtors stated that they resided at 1816 Jeanna Place, Upland, CA 91784 (hereinafter the "Property"). The Property was valued at $439,100, and it was held as collateral for numerous claims totaling more than $650,000.00. Debtors received a discharge on May 2, 2012, and their case was closed on May 15, 2012.
Debtors filed a motion to reopen their case on April 6, 2020. The motion was granted, allowing Debtors to attempt to avoid junior liens on their Property. Debtor filed numerous lien avoidance motions, including this one to avoid lien owed to Stephen I. Gassner. Simultaneously, Debtor filed a motion amending their Schedule
C. In that amended schedule, Debtors exempted $100.00 pursuant to California Civil Code of Civil Procedure § 703.140(b)(1) in regard to their Property.
DISCUSSION
Exemptions
11 U.S.C § 522 is the principal section governing exemptions. 11 U.S.C §
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522(d) lists certain types of properties and the amount the Debtor can exempt for such type. However, States have the opportunity to prohibit their residents from choosing the exemption stated in that subsection. 11 U.S.C. § 522(b).
California happens to be one of those States. States that opted-out of the federal exemption provided by 11 U.S.C § 522(d) can limit their residents to the exemptions available under applicable state and non-bankruptcy federal laws. 4 Collier on Bankruptcy ¶ 522.01 (Richard Levin & Henry J. Sommer eds., 16 ed.).
Under Cal. Code of Civ. Proc. §730.050, the determination of whether property is exempt or the amount of an exemption shall be made by application of the exemption statutes in effect at (1) at the time the judgment creditor’s lien was created or (2) if the judgment creditor’s lien on the property is the latest in a series of overlapping liens, at the time the earliest lien in the series of overlapping liens was created.
In this case, the first-lien holder, Indymac Bank/Onewest Bank, recorded its lien on April 27, 2007, the second-lien holder, Bank of America, N.A., recorded its lien on April 27, 2007, and Stephen I. Gassner was awarded a judgment lien on November 1, 2011. Thus, as a series of overlapping liens, the date of the first lien recorded, April 27, 2007, is the determining date of the amount and exemption statute applicable.
Operative since July 1, 1983, California gives its residents one of two options for a homestead exemption: (1) a debtor may elect a set of exemptions under Cal.
Code of Civ. Proc. §703.140(b)(1) or (2) claim the benefit of the homestead exemptions available to judgment debtors in Cal. Code of Civ. Proc. §704.730, which provides three different amounts—$75,000, $100,000, and $175,000. In re Pladson, 35 F.3d 462, 464 (9th Cir. Ct. App. 1994).
In this case, Debtors elected the "wildcard exemption." The Debtors are allowed an exemption up to $17,425.00 of their aggregate interest in the Property. Debtors have elected to exempt $100.00
The Court may not refuse to honor the exemption absent a valid statutory basis for doing so. Law v. Siegel, 134 S. Ct. 1188 (2014) (stating a valid statutory basis
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would be for 11 U.S.C §§§ 522(c), 522(o), 522(q)). It appears that the Court has no statutory basis to refuse the exemption.
Furthermore, Pursuant to Federal Rule of Bankruptcy Procedure Rule 4003(b) (3), if an exemption is first claimed after a case is reopened, an objection to the exemption must be filed before the reopened case is closed. 4 Collier on Bankruptcy ¶ 522.05[2][a] (Richard Levin & Henry J. Sommer eds., 16 ed.); see also Taylor v.
Freeland & Kronz, 503 U.S. 638 (1992) (stating that "unless a party in interest objects, the property claimed as exempt…is exempt."). No objection has been filed.
Valuation of the Property
In 11 U.S.C. § 522(a)(2), "‘value’ is defined as ‘fair market value’ as of the date of the filing of the petition’ unless the property does not enter the estate until after the petition has been filed, in which case the value is determined ‘as of the date such property become property of the estate." 4 Collier on Bankruptcy ¶ 522.03[2] (Richard Levin & Henry J. Sommer eds., 16 ed.). See also Bfp v. Resolution Trust Corp., 511 U.S. 531, 537 (1994).
The Debtor provided a fair market valuation using "desktop valuation." Dkt. No. 32, Ex. 2. A "desktop valuation" is an automated computer valuation done using property data, recent comparable sales and property listing…as the name suggests, the valuation can be done from a desk, without needing a valuer to physically visit the property." Home Loan Experts, What is a desktop valuation? (Aug. 11, 2020, 11:57 AM) https://www.homeloanexperts.com.au/home-loan-articles/desktop-valuation/.
Courts have not agreed on a valuation to be used under 11 U.S.C. §522.
Furthermore, "the subsection makes it clear that valuation is to be determined in light of the purpose of the valuation and the proposed disposition or use of the subject property." In re Todd, 194 B.R. 892 (Bankr. MT. 1996) (assessing a value of a home under 11 U.S.C. § 522(a)(2)). Nonetheless, the Court finds it appropriate that a comparable-sales approach may be used to evaluate a property that a debtor resides in.
In addition, the majority of courts have adopted that the appropriate date for valuing a collateral, which fixes a secured creditor’s claim, is the confirmation date or a date close to confirmation. In re Dheming, 2013 Bankr. Lexis 1166 (Bankr. N.D.
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Cal. 2013). In this case, the Court accepts the Debtors’ $400,000.00 valuation effective on January 15, 2012.
Lien Avoidance
11. U.S.C § 522(f):
"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) of this section, if such lien is…(a) a judicial lien…"
A judicial lien is a "lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceedings." 11 U.S.C. § 101. Debtors provide evidence that a judgment was entered against them, and a lien was awarded to Stephen I. Gassner in the amount of $49,189.72. Dkt. No. 32, Ex. 4. The judicial lien appears of a kind not specified in 11 U.S.C §523(a)(5), domestic support obligation. The Debtor also provided the dates and amounts of when other liens encumbered the property.
Dkt. No. 32, Ex 4-5.
It does not matter where the judicial lien is located on the lien hierarchy of the encumbered property. Owen v. Owen, 500 U.S. 305, 311 (1991). What is paramount is "whether the [judicial lien] impairs an exemption to which [the Debtor] would have been entitled to. Id. In this particular case, it does: all current amount of the liens and the exemption, together, total more than $650,000.00.
Thus, the Court has determined that the judicial lien in the amount of
$49,189.72 awarded to Stephen I. Gassner impairs the Debtor’s homestead exemption because the lien at issue plus all other liens on the property and the amount of the exemption exceed the value of Debtor’s interest in the property. 11. U.S.C.§522(f)(2).
There possibly is an exception to the requirement to value the property and calculate the amount of the liens as of the petition date. If the debtor moves to avoid a judicial lien post-discharge, as in this case, an exception to the "petition date calculation" could exist. An injured creditor could be prejudiced if the calculation of
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impairment were to be used as of the hearing or motion date. In re Ricks, 62 B.R. 681, 682-83 (Bankr. S.D. Cal. 1986) (where post-discharge motion to avoid lien ruled
time-barred if the creditor shows detrimental reliance on debtor's prior inaction in avoiding the lien).
However, the creditor must introduce evidence to demonstrate that it has been prejudiced by the debtors’ delay or relied upon the debtors’ non-action to its detriment. In the current situation, the creditor has neither argued that it has been prejudiced nor has suffered harm due to the debtors’ delay in avoiding the lien. In fact, the creditor did not respond to this motion.
Finally, the Court notes that it deems failure to file opposition to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Opposition: None Service: Proper
As set forth above, the judicial lien of Stephen I. Gassner impairs the Debtors’ exemption on their Property, and the Court GRANTS this motion, avoiding this lien in its entirety.
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):
James S Ash Sr. Represented By
Chantell Gonzalez-Nieves Paul Y Lee
11:00 AM
Joint Debtor(s):
Stephanie A Ash Represented By
Chantell Gonzalez-Nieves Paul Y Lee
Movant(s):
James S Ash Sr. Represented By
Chantell Gonzalez-Nieves Paul Y Lee
Stephanie A Ash Represented By
Chantell Gonzalez-Nieves Paul Y Lee
Trustee(s):
Robert L Goodrich (TR) Pro Se
11:00 AM
Docket 16
NONE LISTED -
Debtor(s):
Monique Ravega Represented By Keith Q Nguyen
Movant(s):
Monique Ravega Represented By Keith Q Nguyen
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 114
NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Movant(s):
Donald Sutcliffe Represented By Scott Talkov
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Docket 25
Opposition: None Service: 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’s Fees: $583.94
Trustee’s Expenses: $75.04
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):
Juan M Arreola Leon Represented By James G. Beirne
Joint Debtor(s):
Maria Sandra Arreola Represented By James G. Beirne
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 33
NONE LISTED -
Debtor(s):
James Dimitri Tsirtsis Represented By Donald W Sieveke
Trustee(s):
Robert Whitmore (TR) Represented By
Michelle A Marchisotto
11:00 AM
EH
Docket 25
On July 10, 2019 (hereinafter "Petition Date"), Carlos J. Rojas (hereinafter "Debtor") filed a Chapter 7 voluntary petition. Howard B. Grobstein (hereinafter the "Trustee") was appointed to administer this case. Pursuant to 11 U.S.C. § 341(a), a meeting of the creditors was scheduled for August 13, 2019. On that date, Debtor did attend the meeting; and he was asked to produce several documents, including bank statements that account for an entire year.
The meeting was continued to October 22, 2019. Id. Debtor did appear, but failed to produce the documents that were requested of him. The meeting was continued to July 9, 20201. Id. Trustee filed this motion requesting that the Court compel Debtor to appear and produce the bank statements, accounting for an entire year, at the meeting of the creditors. Trustee argues that he is unable to fulfill his obligation pursuant to 11 U.S.C. § 704.
11 U.S.C. § 521:
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The debtor shall—
if a trustee is serving in the case…cooperate with the trustee as
necessary to enable the trustee to perform the trustee’s duties under this title…
if a trustee is serving in the case…surrender to the trustee all property of the estate and any recorded information, including books, documents, records, and papers, relating to property of the estate…
Attaining bank statements, accounting for the entire year, is interdependent with many duties entrusted to the Trustee, such as, but not limited to, investigating the financial affairs of the Debtor. 11 U.S.C. § 704(a)(4). Therefore, when the Trustee ask the Debtor to provide said document and Debtor does not produce said document, Debtor has failed to cooperate with the Trustee and to surrender any recorded information relating to property of the estate.
Debtor has not responded to this motion. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion.
Motion is GRANTED. Debtor has within ten days of the entry of Court order to produce the requested document.
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):
Carlos J Rojas Represented By Hector Vega
11:00 AM
Movant(s):
Howard B Grobstein (TR) Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Arlene Burns Represented By
Robert L Firth
Movant(s):
Arlene Burns Represented By
Robert L Firth
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
U.S.C. §§ 363(b) and (f); (2) Approving Overbid Procedures; (3) Authorizing Distribution of Sales Proceeds; (4) Waiver of Federal Rule of Bankruptcy Procedure 6004(h); (5) Finding Buyer to Be a Good Faith Purchaser Pursuant to 11 U.S.C. § 363(m); and (6) Requiring Debtor to Turnover Property
EH
Docket 54
- NONE LISTED -
Debtor(s):
Robert Wayne Young Represented By Cynthia A Dunning
Movant(s):
Karl T Anderson (TR) Represented By Robert P Goe Ryan S Riddles
Trustee(s):
Karl T Anderson (TR) Represented By Robert P Goe Ryan S Riddles
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Trustee(s):
Karl T Anderson (TR) Pro Se
12:00 PM
EH
Docket 18
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
Movant(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
Adv#: 6:20-01106 Daff v. DeGracia
Avoidance of Intentional Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.07, 3439.08];
Avoidance of Constructive Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.05, 3439.07, 3439.08, 3439.09]; 3. Disallowance of Claims [11 U.S.C. §502(d)]; 4. Unjust Enrichment [11 U.S.C. § 105]; 5. Declaratory Relief [11 U.S.C. §§ 541, 544, 548; FRBP 7001(9)]; and 6. Turnover of Property of the Estate [11 U.S.C. § 542] Nature of Suit: (01 (Determination of removed claim or cause)),(13 (Recovery of money/property - 548 fraudulent transfer)),(91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)) (Iskander, Brandon)
From: 7/22/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Defendant(s):
Satoko DeGracia Represented By Scott Talkov
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
2:00 PM
Adv#: 6:20-01112 Cruz v. Cruz
EH
Docket 3
- NONE LISTED -
Debtor(s):
Ronald V. Cruz Represented By Walter Scott
Defendant(s):
Ronald V. Cruz Represented By Walter Scott
Plaintiff(s):
Patricia Moonyeen Cruz Represented By
William H Brownstein
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:20-01105 Frealy v. Riad
From: 7/22/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Nevin Riad Represented By
Daniel S March
Defendant(s):
Nevin Riad Pro Se
Plaintiff(s):
Todd Frealy Represented By
Carmela Pagay
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
Also #19 EH
Docket 12
On January 23, 2019, Timothy & Esmeralda Aitken ("Debtors") filed a pro se Chapter 7 voluntary petition. On April 19, 2019, Trustee filed a notice of assets. On May 1, 2019, Debtors filed an amended Schedule C claiming as exempt equity in real property located at 6919 Elmwood Rd., San Bernardino, CA (the "Property") transferred in 2017. On February 28, 2020, Trustee filed a motion to extent time to objection to Debtors’ claimed exemption. On April 7, 2020, the Court entered an order extending the deadline to object to Debtors’ claimed exemption until October 3, 2020.
On March 3, 2020, Trustee filed a complaint against Alicia Aitken ("Defendant"), Debtors’ daughter, for avoidance and recovery of fraudulent transfer. On April 14, 2020, default was entered against Defendant. On June 9, 2020, Trustee filed a motion for default judgment.
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Trustee’s complaint relates to the sale of the Property from Debtors to Defendant on August 31, 2017. Trustee notes that the settlement statement for the sale includes a notation for a gift of equity in the amount of $29,310. It appears from the information provided to the Court that the sale involved Defendant taking out a loan in the amount of $195,400 and paying off the existing mortgage on the Property as well as all costs of sale. After payment of those items, it appears that Defendant retained $29,310 of the remaining $32,551.56 in loan proceeds, with the balance going to Debtors. Trustee then sued Defendant to recover the $29,310.
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:
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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, Defendant was served at the Property. While Defendant clearly purchased the Property, the Court notes that Debtors listed the Property as their address on the bankruptcy petition, and also listed a housing expense on Schedule J, so it appears Defendant may have purchased the Property and began renting it out to Debtors.
Trustee to apprise the Court of its attempt to determine a valid service address for Defendant.
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. A general problem with all five causes of action is Trustee’s characterization of the "transfer" to be avoided. Trustee has defined the subject transfer as the gift of equity. In so doing, Trustee has bifurcated the sale at issue into two distinct transactions: (1) a sale of the Property for
$195,400; and (2) a gift from Debtors to Defendant in the amount of $29,310. This
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would appear to be a distortion of the events which actually occurred, specifically that Defendant took out a loan for $195,400 and purchased the Property for $166,090, retaining the remaining loan proceeds.
Therefore, the operative legal question becomes – to what extent can a transfer be subdivided into various components? The Court notes Trustee’s argument implicitly requires the Court to assume that the $195,400 price of the Property constitutes the fair market value of the Property, but the Court does not have any evidence to support that conclusion. Even accepting that assumption, Trustee’s proposed bifurcation of the sale arrangement results in a fundamental change in the statutory language, for it would force this Court to replace "reasonably equivalent value" with "equivalent value." For in any sale in which the purchase price was less than the fair market value of the property, the sale could be construed as a sale of the property for the fair market value and an accompanying gift of equity; in other words, every transfer in which a debtor received less than "equivalent value" would be subject to attack.1
Therefore, in accordance with the reasoning above and the Court’s understanding of the terms of the sale (reproduced in the final paragraph of the background section), the Court is inclined to consider the transfer at issue to have been the sale of the Property for $166,010. Trustee has not provided any legal argument that would support a conclusion that the sale of the Property for $166,010 constitutes a fraudulent transfer.
The Court is inclined to CONTINUE the matter for Trustee to file a supplemental brief responding to the issues raised above.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Howard Grobstein Represented By Larry D Simons
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20, 6/10/20, 7/1/20 Also #18
EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:19-01131 Anderson v. Marroquin, Jr.
Avoidance and Recovery of Intentional Fraudulent Transfers; (3) Avoidance and Recovery of Property of the Bankruptcy Estate; and (4) Temporary Restraining Order and Preliminary Injunction Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)) (Eastmond, Thomas)
From: 12/4/19, 5/27/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Maria Fabiola Marroquin Represented By Mark A Mellor
Defendant(s):
Roderico Marroquin Jr. Represented By Alec L Harshey
Plaintiff(s):
Karl T. Anderson Represented By Thomas J Eastmond Robert P Goe
Rafael R Garcia-Salgado
2:00 PM
Trustee(s):
Karl T Anderson (TR) Represented By Robert P Goe
Thomas J Eastmond Rafael R Garcia-Salgado
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
EH
Docket 6
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Defendant(s):
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
Movant(s):
Internal Revenue Service Represented By Gavin L Greene
Plaintiff(s):
Donald John Sutcliffe Represented By Scott Talkov
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
EH
Docket 8
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Defendant(s):
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
Movant(s):
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
Plaintiff(s):
Donald John Sutcliffe Represented By Scott Talkov
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
Also #21 & #22 EH
Docket 1
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Represented By Scott Talkov
Defendant(s):
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
Plaintiff(s):
Donald John Sutcliffe Represented By Scott Talkov
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20
Also #25 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
3:00 PM
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
conversion; 2 constructive trust; 3 unjust enrichment; 4 an accounting; 5 declaratory relief; and 6 primary and secondary indemnification and contribution by American Business Investments , Jesse Bojorquez against Stephen Collias , Continental Capital LLC
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20
Also #24 EH
Docket 29
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By
3:00 PM
Cara J Hagan Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan Lawrence J Kuhlman
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20,
7/2/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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#: 6:20-01098 Janeke et al v. Hunter, Jr
From: 7/30/20 Also #3 & #4 EH
Docket 9
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Defendant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Movant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle James D. Hornbuckle
Plaintiff(s):
Charles Janeke Represented By
Joseph C Edmondson
1330 Ingraham Company, LLC Represented By
11:00 AM
Trustee(s):
Joseph C Edmondson
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:20-01098 Janeke et al v. Hunter, Jr
Also #2 & #4 EH
Docket 0
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Defendant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Plaintiff(s):
1330 Ingraham Company, LLC Represented By
Joseph C Edmondson
Charles Janeke Represented By
Joseph C Edmondson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Adv#: 6:20-01098 Janeke et al v. Hunter, Jr
From: 7/23/20 Also #2 & #3 EH
Docket 1
- NONE LISTED -
Debtor(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Defendant(s):
Walter Hunter Jr Represented By
James D. Hornbuckle
Plaintiff(s):
1330 Ingraham Company, LLC Represented By
Joseph C Edmondson
Charles Janeke Represented By
Joseph C Edmondson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 86
- NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20, 7/2/20
Also #5 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 77
The Court, having reviewed the motion and Trustee' comments, notice being proper and no opposition having been filed, 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):
David K Johnson Represented By Gary J Holt
Joint Debtor(s):
Janet L Johnson Represented By Gary J Holt
Movant(s):
David K Johnson Represented By Gary J Holt
Janet L Johnson Represented By Gary J Holt
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 147
8/20/2020
On November 20, 2017, Alfredo & Mayte Arrieta ("Debtors") filed a Chapter 13 voluntary petition. On February 8, 2018, Debtors’ Chapter 13 plan was confirmed. Debtors’ Chapter 13 plan has subsequently been modified on three occasions.
On May 5, 2020, Trustee filed a motion to dismiss for delinquency. On May 13, 2020, Debtors filed their opposition. On May 19, 2020, Debtors filed a motion to modify plan. Debtors immediately set the motion to modify plan for hearing without waiting for Trustee’s comments. On May 20, 2020, Trustee filed comments indicating conditional approval of the motion to modify. Subsequently, on June 8, 2020, Trustee withdrew the motion to dismiss, and Debtors’ motion to modify was granted pursuant to order entered June 15, 2020.
On June 15, 2020, Andy Warshaw ("Counsel") filed an application for compensation, seeking $1,399.90 for work related to Trustee’s motion to dismiss and the motion to modify plan. On June 17, 2020, Trustee filed comments recommending a reduced amount of $1,250.
The difference between the amount requested by Counsel and the amount recommended by Trustee is explained by Counsel adding Courtcall costs and expenses to the standard no-look fees. As noted by Trustee, the Court considers normal costs to be included within the no-look fees. Therefore, the addition of
$149.90 to the no-look fee being inappropriate, the Court is inclined to APPROVE the application in the reduced amount of $1,250.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Joint Debtor(s):
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Movant(s):
Alfredo Manzo Arrieta Represented By Andy C Warshaw
Mayte Hernandez- Arrieta Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/2/20, 7/23/20 EH
Docket 76
- NONE LISTED -
Debtor(s):
Randal Scott Oakley Represented By Halli B Heston
Joint Debtor(s):
Christine Ann Oakley Represented By Halli B Heston
Movant(s):
Randal Scott Oakley Represented By Halli B Heston Halli B Heston Halli B Heston
Christine Ann Oakley Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 56
- NONE LISTED -
Debtor(s):
Luis Felipe Tejeda Represented By Dana Travis
Joint Debtor(s):
Veronica Esther Tejeda Represented By Dana Travis
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Patrick E. Berry Represented By Terrence Fantauzzi
Joint Debtor(s):
Michelle L. Brown Berry Represented By Terrence Fantauzzi
Movant(s):
Patrick E. Berry Represented By Terrence Fantauzzi Terrence Fantauzzi
Michelle L. Brown Berry Represented By Terrence Fantauzzi Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 45
The Court deems Creditor's withdrawal of its proof of claim, filed on August 11 as docket number 51, to be consent to the relief requested. On that basis, 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):
Paul Salgado Represented By
Jenny L Doling John P Dolan
Joint Debtor(s):
Paula Salgado Represented By Jenny L Doling John P Dolan
Movant(s):
Paul Salgado Represented By
11:00 AM
Jenny L Doling John P Dolan
Paula Salgado Represented By Jenny L Doling John P Dolan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
HOLDING DATE
From: 6/4/20, 7/23/20 EH
Docket 285
- NONE LISTED -
Debtor(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Movant(s):
James Earl Chapman Jr. Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/2/20 Also #15
EH
Docket 114
- 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
Also #14 EH
Docket 113
- 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
MOVANT: ODIE VALTINO MACK
EH
Docket 17
11 U.S.C. § 362(c)(3)(B) requires that a hearing on a motion to continue the automatic stay be set and concluded within thirty days of the petition date. As a result, the deadline for the Court to hear a motion to continue the automatic stay in this case was August 7, 2020. For that reason, and noting a variety of substantial deficiencies with the instant motion, the Court is inclined to DENY the motion and issue an order to show cause why Debtor’s counsel should not be sanctioned pursuant to FED. R. B. P. Rule 9011 and the Court’s inherent sanctioning authority.
APPEARANCES REQUIRED.
Debtor(s):
Odie Valtino Mack Represented By Anthony P Cara
Movant(s):
Odie Valtino Mack Represented By Anthony P Cara
11:00 AM
Trustee(s):
Anthony P Cara
Rod Danielson (TR) Pro Se
11:00 AM
Docket 13
The Court having reviewed the motion, notice appearing proper, no opposition having been filed, and good cause appearing, the Court is inclined to GRANT the motion, avoiding the lien of Bank of America, N.A., effective 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):
Michelle Giralao Represented By Paul Y Lee
Movant(s):
Michelle Giralao Represented By Paul Y Lee Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 25
On June 1, 2020, Robert Thomas ("Debtor") filed a Chapter 13 voluntary petition.
On July 7, 2020, Debtor’s daughter, Chantilly Thomas ("Daughter") filed a motion to be appointed as next friend to Debtor, and for Debtor to be excused from completing the personal financial management court.
In support of the motion, Debtors filed a declaration of Daughter that states that Debtor has dementia and is rapidly deteriorating. Attached to the declarations, Debtors have submitted a brief doctor’s note that states that it is the doctor’s opinion that Debtor "is not competent to manage his own financial affairs." The Court notes that notice and service are sufficient.
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.
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.
Ability to reason using abstract concepts.
11:00 AM
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.
Here, while the evidence submitted by Daughter is not detailed and extensive, the Court concludes that that the diagnosis of dementia, the doctor’s opinion that Debtor "is not competent to manage his own financial affairs," and the durable power of attorney taken together, support a finding that Debtor is not competent to participate in these proceedings and that the appointment of a next friend is appropriate.
Furthermore, given that the Court finds that the appointment of Daughter as next friend is appropriate pursuant to FED. R. BANKR. P. Rule 1004.1, the Court also concludes that it is appropriate to classify Debtor as mentally impaired pursuant to 11
U.S.C. § 109(h)(4), and that, as a result, it is appropriate to waive the postpetition personal financial management course pursuant to 11 U.S.C. § 109(h)(4) and 11
U.S.C. § 727(a)(11).
Finally, the Court notes it deems failure to oppose to be 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):
Robert Lee Thomas, Sr. Represented By Suzette Douglas
Movant(s):
Robert Lee Thomas, Sr. Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Scott James Beilstein Represented By Todd L Turoci
Joint Debtor(s):
Kristin Michelle Beilstein Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jamin Ward Amond Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Davina Patricia Amond Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Brandon G. Hernandez Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rudolph Brown Represented By Julie J Villalobos
Joint Debtor(s):
Maria D. Garcia-Brown Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Maria Acosta Represented By Jenny L Doling John P Dolan
Joint Debtor(s):
Maria Rosario Acosta Represented By Jenny L Doling John P Dolan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Monica Aguirre Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gregory Scott Richman Represented By Jeffrey J Hagen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christopher Romash Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #29 EH
Docket 17
- NONE LISTED -
Debtor(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano
Movant(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano Joselina L Medrano Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #28 EH
Docket 0
- NONE LISTED -
Debtor(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #31 EH
Docket 38
- NONE LISTED -
Debtor(s):
Maria Toscano Lawes Represented By William J Smyth
Movant(s):
Maria Toscano Lawes Represented By William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #30 EH
Docket 0
- NONE LISTED -
Debtor(s):
Maria Toscano Lawes Represented By William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eric Jennings Sr. Represented By Julie J Villalobos
Joint Debtor(s):
Tish Jennings Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 83
- NONE LISTED -
Debtor(s):
Franklin Merl Thomas King Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 134
- 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
Docket 94
- NONE LISTED -
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 88
- 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 90
- NONE LISTED -
Debtor(s):
Willie J Brooks Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 75
- NONE LISTED -
Debtor(s):
Keith F Keating Represented By Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 76
- NONE LISTED -
Debtor(s):
Keith F Keating Represented By Sundee M Teeple Craig K Streed
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Armando Hermosillo Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 98
- 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 47
- NONE LISTED -
Debtor(s):
Tiffany Venice Turner Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 100
- 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
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
James David Wilson IV Represented By Dana Travis
Joint Debtor(s):
Kerri Ann Wilson Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
- NONE LISTED -
Debtor(s):
Elizabeth Dean Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 117
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
Rogelio Preciado Represented By James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Sheri Lynn Cooper Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Charles Sanchez Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- NONE LISTED -
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Michelle R. Rayner Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Edwin Briones Represented By Kevin Tang
Joint Debtor(s):
Gabriela Sandez Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 44
- NONE LISTED -
Debtor(s):
Craig Edward Williams Represented By Julie J Villalobos
Joint Debtor(s):
Norma Geneva Williams Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
- NONE LISTED -
Debtor(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Lakendra Johnson Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 207
- NONE LISTED -
Debtor(s):
Rigoberto Baez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 123
- NONE LISTED -
Debtor(s):
Rosalie Estella Crouch Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 164
- NONE LISTED -
Debtor(s):
Ramiro J Cruz Represented By Summer M Shaw
Joint Debtor(s):
Norma Idalia Cruz Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 98
- NONE LISTED -
Debtor(s):
Hector Davalos Nuno Represented By Jenny L Doling
Joint Debtor(s):
Nanci Tomoye Nuno Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 63
- NONE LISTED -
Debtor(s):
Juan A Hernandez Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 84
- NONE LISTED -
Debtor(s):
Franklin Merl Thomas King Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 113
- NONE LISTED -
Debtor(s):
Scott Allan Oswald Represented By Richard L Barrett
Joint Debtor(s):
Lisa Frances Oswald Represented By Richard L Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
- NONE LISTED -
Debtor(s):
Rafael Bello Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
- NONE LISTED -
Debtor(s):
George P. Solorio Jr. Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
- NONE LISTED -
Debtor(s):
Nikea N Jackson Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
- NONE LISTED -
Debtor(s):
Elmer H Brady Represented By Julie J Villalobos
Joint Debtor(s):
Judy L Brady Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
Irma Leticia Castellanos Represented By Robert T Chen
Joint Debtor(s):
Martin Castellanos Represented By Robert T Chen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 173
- NONE LISTED -
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 78
- NONE LISTED -
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 75
- NONE LISTED -
Debtor(s):
Joe Roger Montes Represented By Stephen R Wade
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Roberto Gutierrez Represented By Paul Y Lee
Joint Debtor(s):
Gabriela Gutierrez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 131
- NONE LISTED -
Debtor(s):
Andrea Millette Tucker Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 101
- NONE LISTED -
Debtor(s):
Jesus Aguilar Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Maria G Aguilar Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 235
- NONE LISTED -
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
- NONE LISTED -
Debtor(s):
Bruce Stewart Gardner Represented By James P Doan
Joint Debtor(s):
Michelle Marie Gardner Represented By James P Doan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 113
- NONE LISTED -
Debtor(s):
Lilia Ivethe Fong Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 111
- NONE LISTED -
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 71
- NONE LISTED -
Debtor(s):
Brian Richard DeMoulpied Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 114
- NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Angelica Gonzalez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
- NONE LISTED -
Debtor(s):
Charles Edward Horton Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 86
- NONE LISTED -
Debtor(s):
Allan Martin Borgen Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 89
- NONE LISTED -
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 101
- NONE LISTED -
Debtor(s):
Milorad Mileusnic Represented By Jenny L Doling
Joint Debtor(s):
Sonja Mileusnic Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 182
- NONE LISTED -
Debtor(s):
Roger C Jefferson Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
- NONE LISTED -
Debtor(s):
Feliciano Julian De Vera Represented By Lawrence B Yang
Joint Debtor(s):
Pacita DelaCruz De Vera Represented By Lawrence B Yang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Patsy Jean Patterson Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 74
- NONE LISTED -
Debtor(s):
Carmen Saucedo Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 90
- NONE LISTED -
Debtor(s):
Willie Elvin Chambers Represented By Heather J Canning Barry E Borowitz
Joint Debtor(s):
Marlene Shirley Chambers Represented By Heather J Canning Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
- NONE LISTED -
Debtor(s):
Mary Jones Represented By
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
- NONE LISTED -
Debtor(s):
Gwyneth Martin Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 138
- 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
1:00 PM
Docket 96
- NONE LISTED -
Debtor(s):
John Adam Tribue IV Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
- NONE LISTED -
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 128
- 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
1:00 PM
Docket 70
- NONE LISTED -
Debtor(s):
Ingeborg Margarete Preisendanz Represented By
Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
- NONE LISTED -
Debtor(s):
Pamela Lynn King Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Matthew Franklin Brown Represented By Edward G Topolski
Joint Debtor(s):
Denise Gay Brown Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Sonia Galicia Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 112
- NONE LISTED -
Debtor(s):
Fonda Cormier Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
- NONE LISTED -
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 65
- NONE LISTED -
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 39
- NONE LISTED -
Debtor(s):
Javier Lopez Represented By
Christopher Hewitt
Joint Debtor(s):
Carmen Lopez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Sayel S. Abuhasou Represented By Ronald L Brownson
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
- NONE LISTED -
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
- NONE LISTED -
Debtor(s):
Ruby Duran Garcia Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 178
- 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
1:00 PM
Docket 73
- NONE LISTED -
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 41
- NONE LISTED -
Debtor(s):
Uy Thanh Nguyen Represented By Dana Travis
Joint Debtor(s):
Seva Nguyen Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Darla Bell Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 76
- NONE LISTED -
Debtor(s):
Luis A Jovel Represented By
Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
- NONE LISTED -
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 62
- 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
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Alvin M. Ching Represented By Keith Q Nguyen
Joint Debtor(s):
Aphrodyte D. Ching Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
- NONE LISTED -
Debtor(s):
Sam Venero Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
- NONE LISTED -
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
- NONE LISTED -
Debtor(s):
Guadalupe Espinoza Represented By Edwing F Keller
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
- 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
1:00 PM
Docket 66
- NONE LISTED -
Debtor(s):
Brian Eugene Anderson Represented By Todd L Turoci
Joint Debtor(s):
Gina Marie Anderson Represented By Todd L Turoci Shonna Cobb
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 100
- NONE LISTED -
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
- NONE LISTED -
Debtor(s):
Ernesto Ayon Lopez Represented By James G. Beirne
Joint Debtor(s):
Dolores Millan Sanchez Represented By James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Gail Katherine Stump Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Louis Lee Brown III Represented By Summer M Shaw
Joint Debtor(s):
Teri Claudette Brown Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
- NONE LISTED -
Debtor(s):
Guillermina Perez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Rita Maria Maldonado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 128
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
- NONE LISTED -
Debtor(s):
Allan Omar Ramos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Ruben Quintero Palafox Jr. Represented By Yoon O Ham
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
- 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
1:00 PM
Docket 62
- NONE LISTED -
Debtor(s):
Linda Revoner Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 125
- 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
1:00 PM
Docket 71
- 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
1:00 PM
Docket 57
- NONE LISTED -
Debtor(s):
Jose Guadalupe Sandoval Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
- NONE LISTED -
Debtor(s):
Rosa Del Carmen Cruz Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Represented By
Lisa F Collins-Williams
1:00 PM
Docket 52
- NONE LISTED -
Debtor(s):
Carolyn Joyce Brooks Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
- NONE LISTED -
Debtor(s):
Daniel Robert Shapiro Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 77
- 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
1:00 PM
Docket 102
- NONE LISTED -
Debtor(s):
Patricia Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 56
- NONE LISTED -
Debtor(s):
Edgar Raymond Domingue Sr. Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
- NONE LISTED -
Debtor(s):
Virginia Fonseca Represented By Andy C Warshaw
Joint Debtor(s):
Jesus Fonseca III Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Juan Hernandez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
- 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
1:00 PM
Docket 48
- NONE LISTED -
Debtor(s):
Tiffany Venice Turner Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 85
- 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
1:00 PM
Docket 52
- 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
1:00 PM
Docket 73
- NONE LISTED -
Debtor(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
- NONE LISTED -
Debtor(s):
Nereeka Tamar Haynes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
- 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
1:00 PM
Docket 60
- 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
1:00 PM
Docket 52
- NONE LISTED -
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
- 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
1:00 PM
Docket 39
- NONE LISTED -
Debtor(s):
Eric Reed Johnson Represented By Todd L Turoci
Joint Debtor(s):
Kristine Lynn Johnson Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
- 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
1:00 PM
Docket 101
- 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
1:00 PM
Docket 34
- NONE LISTED -
Debtor(s):
Robert Memler Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
- NONE LISTED -
Debtor(s):
Edbin Gonzalez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Chavarria Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
- NONE LISTED -
Debtor(s):
Marta Samhouri Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
- 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
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
Elizabeth Dean Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
- 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
1:00 PM
Docket 47
- NONE LISTED -
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
- 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
1:00 PM
Docket 102
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
- 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
1:00 PM
Docket 30
- NONE LISTED -
Debtor(s):
Shannon Michelle Price Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
- NONE LISTED -
Debtor(s):
Maggie Ruth Thomas Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
- NONE LISTED -
Debtor(s):
Ridley R. Molders Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 85
- NONE LISTED -
Debtor(s):
Gary Ray Osborn Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 70
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
- 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
1:00 PM
Docket 36
- 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
1:00 PM
Docket 76
- 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
1:00 PM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Incha K Lockhart Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Michelle Denise Kelly Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Barbara Sue Patten Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 75
- 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
1:00 PM
Docket 36
- 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
1:00 PM
Docket 57
- NONE LISTED -
Debtor(s):
Irene Elizabeth Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 76
- NONE LISTED -
Debtor(s):
Jesus N Aguilera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
- NONE LISTED -
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
- 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
1:00 PM
Docket 72
- 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
1:00 PM
Docket 64
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
- NONE LISTED -
Debtor(s):
Rena Renee Payne Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
- NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
- NONE LISTED -
Debtor(s):
Daniel Javier Garcia Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 118
- NONE LISTED -
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
- 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
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Erika Lynn Pruitt Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Jennifer Lee Minkalis Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 89
- NONE LISTED -
Debtor(s):
Carmen Lynn Chilson Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 71
- NONE LISTED -
Debtor(s):
Sheila Rosales Manabat Represented By John A Varley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
- NONE LISTED -
Debtor(s):
Kevin Daily Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Dawn Michele McClure Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Mary Joyce Rudolph Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
- NONE LISTED -
Debtor(s):
Herman A. Wendorff Represented By Daniel King
Joint Debtor(s):
Monica Wendorff Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 67
- NONE LISTED -
Debtor(s):
Alexander J Perfinowicz Represented By Manfred Schroer
Joint Debtor(s):
Ingeborg Maria Pefinowicz Represented By Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Darrel Jay Rumsey Represented By Norma Duenas Andrea Liddick
Joint Debtor(s):
Fe Eruela Rumsey Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
- NONE LISTED -
Debtor(s):
Garry Kenneth Frazier Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
- NONE LISTED -
Debtor(s):
Carlos Rizo Represented By
Erika Luna
Joint Debtor(s):
Desiree Santistevan Represented By Erika Luna
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
- NONE LISTED -
Debtor(s):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Alfonso Alvarado Jr. Represented By Michael E Clark
Joint Debtor(s):
Alpha Rubi Alvarado Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 85
- NONE LISTED -
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
- NONE LISTED -
Debtor(s):
Gail Nash Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 57
- NONE LISTED -
Debtor(s):
Jorge Ramirez Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Evelia Ramirez Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Golda Y Williams Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
- NONE LISTED -
Debtor(s):
Patrick M Reilly Represented By James T Lillard
Joint Debtor(s):
Karen J Reilly Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
- NONE LISTED -
Debtor(s):
David Ray Bowman Represented By Carey C Pickford
Joint Debtor(s):
Michelle Jan Bowman Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Leonard Lott Represented By
Daniel King
Joint Debtor(s):
Darlene Lott Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
- NONE LISTED -
Debtor(s):
Eusebio H Martinez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
- NONE LISTED -
Debtor(s):
Maxine Tann Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Rudy Torres Garcia Represented By
Rabin J Pournazarian
Joint Debtor(s):
Irma Valencia Garcia Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Keionna Marie Pitts Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Isela Irma Vega Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
- NONE LISTED -
Debtor(s):
Jerry Melendrez Represented By Todd L Turoci
Joint Debtor(s):
Laura Therese Melendrez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
- NONE LISTED -
Debtor(s):
Hector Jesus Sevilla Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
- NONE LISTED -
Debtor(s):
Luis Enrique Chavez Represented By Giovanni Orantes
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Cesar Armando Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
- NONE LISTED -
Debtor(s):
Tamra Gillian Rehak Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Michael Ray Sandoval Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
Christopher Steven Henthorn Represented By Seema N Sood
Joint Debtor(s):
Christine Lynne Apodaca Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Germaine Denice Carr Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
- NONE LISTED -
Debtor(s):
Erlwin E Williams Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 84
- NONE LISTED -
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
- NONE LISTED -
Debtor(s):
Bradley J Allanach Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
- NONE LISTED -
Debtor(s):
Phonmany Phengphavong Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
- NONE LISTED -
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Phillip Herrera Represented By Paul Y Lee
Joint Debtor(s):
Mayra Herrera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
Frank Rubin Carrillo Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Angel B Castro Sr. Represented By Kevin Tang
Joint Debtor(s):
Elizabeth Castro Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
- NONE LISTED -
Debtor(s):
Alma Barbara Ewing Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
- NONE LISTED -
Debtor(s):
Jose Manuel Urena-Hernandez Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Veronica Galvez Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
- NONE LISTED -
Debtor(s):
Delmer Sylvester Represented By Paul Y Lee
Joint Debtor(s):
Susan Sylvester Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
- NONE LISTED -
Debtor(s):
Jonathon Keith Stoner Represented By Sundee M Teeple
Joint Debtor(s):
Jacqueline Belinda Stoner Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
- NONE LISTED -
Debtor(s):
Sara Rolston Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 46
- NONE LISTED -
Debtor(s):
Jorge Luis Ibarra Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
- NONE LISTED -
Debtor(s):
Rudy Michael Castillo Represented By Nicholas M Wajda
Joint Debtor(s):
Monica Michelle Castillo Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
- NONE LISTED -
Debtor(s):
Patrocinio Castaneda Represented By
George C Panagiotou
Joint Debtor(s):
Liliana Salgado Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
- NONE LISTED -
Debtor(s):
Juan Manuel Andrade Represented By
J.D. Cuzzolina
Joint Debtor(s):
Cecilia R Andrade Represented By
J.D. Cuzzolina
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
- NONE LISTED -
Debtor(s):
Latacia D Sanders Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
- NONE LISTED -
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
- NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
- NONE LISTED -
Debtor(s):
Edward A Jandt Represented By Christopher Hewitt
Joint Debtor(s):
Shelley A Jandt Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
- NONE LISTED -
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
- NONE LISTED -
Debtor(s):
Jorel Esteban Zambrano Represented By Carey C Pickford
Joint Debtor(s):
Sandy Rose Zambrano Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
Michelle R. Rayner Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Floretta Love Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 30
- NONE LISTED -
Debtor(s):
Harinder Heera Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
- NONE LISTED -
Debtor(s):
John A Kiernan Represented By Paul Y Lee
Joint Debtor(s):
Maria Kiernan Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
- NONE LISTED -
Debtor(s):
Zackery B. Ogletree Represented By
James D. Hornbuckle
Joint Debtor(s):
Danielle Police Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
- NONE LISTED -
Debtor(s):
Jorge Mercado Represented By Paul Y Lee
Joint Debtor(s):
Martha Mercado Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
- NONE LISTED -
Debtor(s):
Mark David Dixon Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Luci Denise. Green Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
- NONE LISTED -
Debtor(s):
Regina Huber Represented By
Alon Darvish - SUSPENDED BK -
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 70
- NONE LISTED -
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Michael D Albrecht Represented By Paul Y Lee
Joint Debtor(s):
Irene R Albrecht Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
- NONE LISTED -
Debtor(s):
Paul Edward Young Jr. Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 98
- NONE LISTED -
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
David Cornelius Watson Represented By Todd L Turoci
Joint Debtor(s):
Crystal Tamara Watson Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 55
- NONE LISTED -
Debtor(s):
Brenadette Schoby Represented By
Dennis A Rasmussen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Matthew D. Resnik
Joint Debtor(s):
Kenya Lashawn Britt Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
- NONE LISTED -
Debtor(s):
Davina Stowers-Burgess Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
- NONE LISTED -
Debtor(s):
Sandraea La 'Jean Plummer Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Jihad Jundi Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
- NONE LISTED -
Debtor(s):
Craig Edward Williams Represented By Julie J Villalobos
Joint Debtor(s):
Norma Geneva Williams Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Josephina Lopez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
- NONE LISTED -
Debtor(s):
Cristian Enrique Dominguez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Jeremiah Schermerhorn Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Jaqueline Aguilar-Ramos Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
- NONE LISTED -
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Gino Camilleri Represented By Terrence Fantauzzi
Joint Debtor(s):
Kristen Camilleri Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Larry W. Smith Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
- NONE LISTED -
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
- NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
- NONE LISTED -
Debtor(s):
John Lee Riggins Represented By Todd L Turoci
Joint Debtor(s):
Bette Ruth Riggins Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
- NONE LISTED -
Debtor(s):
Daniel Gardono Represented By Gregory Ashcraft
Joint Debtor(s):
Dianna Isla Represented By
Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Salvador Gonzalez Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 22
- NONE LISTED -
Debtor(s):
Jose Luis Feliciano Represented By Carey C Pickford
Joint Debtor(s):
Linda Joann Feliciano Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
- NONE LISTED -
Debtor(s):
Jim Curtis Lower III Represented By Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
- NONE LISTED -
Debtor(s):
Kevin Odinni Lawrence Represented By Summer M Shaw
Joint Debtor(s):
Vonetta Isioma Lawrence Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Santos Mercado Macias Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Blanca Bojorquez De Leon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 26
- NONE LISTED -
Debtor(s):
Pete Moises Alvarez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Fiji Simmons Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
- NONE LISTED -
Debtor(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 24
- NONE LISTED -
Debtor(s):
Lawrence Mitchell Jr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
- NONE LISTED -
Debtor(s):
Christopher Arriaga Represented By Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 25
- NONE LISTED -
Debtor(s):
Amparo Alejo Mercado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Robert D. Warren Represented By Kevin Tang
Joint Debtor(s):
Monica Vargas Restrrepo Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Bogar Hernandez Represented By Todd L Turoci
Joint Debtor(s):
Elvira Landin Hernandez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Jose Urena Represented By
Kevin Tang
Joint Debtor(s):
Stephanie Urena Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 28
- NONE LISTED -
Debtor(s):
Michele Marie Ruggieri Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
- NONE LISTED -
Debtor(s):
Martin Servin Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 66
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT request under ¶¶ 2 and 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.
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
11:00 AM
Movant(s):
U.S. Bank National Association, as Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CORONA LAURELWOOD HOMEOWNER'S ASSOCIATION
EH
Docket 54
- NONE LISTED -
Debtor(s):
Denise Awages Bracken Represented By
Rabin J Pournazarian
Movant(s):
Corona Laurelwoo Homeowner's Represented By
David Brian Lally
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BAYVIEW LOAN SERVICING , LLC
From: 7/21/20 EH
Docket 40
- NONE LISTED -
Debtor(s):
Jonathon Keith Stoner Represented By Sundee M Teeple
Joint Debtor(s):
Jacqueline Belinda Stoner Represented By Sundee M Teeple
Movant(s):
Bayview Loan Servicing, LLC Represented By
Dane W Exnowski Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
EH
Docket 51
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC Bank USA National Represented By Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BUDGET CAPITAL CORPORATION
EH
Docket 33
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Movant(s):
Budget Capital Corporation Represented By Daniel K Fujimoto Alan Steven Wolf Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, NA
EH
Docket 25
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Gregory Scott Richman Represented By Jeffrey J Hagen
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JESSICA LOY, BRITTANY SWIGART, BRANDON SWIGART, JANE DOE, RAMTIN MEHRVIJEH, JULIA SUMMER EVANS, AUSTIN MATELSON, EMILY KOVACH, JANE ROE, AND CARU SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
EH
Docket 15
- NONE LISTED -
Debtor(s):
Elijah Timothy Hunter Kenney Represented By Todd L Turoci Donald W Reid
Movant(s):
Caru Society for the Prevention of Represented By
D Edward Hays
Jane Roe Represented By
D Edward Hays
Emily Kovach Represented By
D Edward Hays
Austin Matelson Represented By
D Edward Hays
11:00 AM
Julia Summer Evans Represented By
D Edward Hays
Ramtin Mehrvijeh Represented By
D Edward Hays
Jane Doe Represented By
D Edward Hays
Brandon Swigart Represented By
D Edward Hays
Brittany Swigart Represented By
D Edward Hays
Jessica Loy Represented By
D Edward Hays
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: JUAN A MARTINEZ
From: 7/2/20, 7/8/20 EH
Docket 10
Service: Improper Opposition: None
In this case, a statutory presumption of bad faith arises pursuant to11 U.S.C. § 362(c) (3)(C)(i)(II)(cc) because Debtor had a bankruptcy case dismissed in the prior year for failure to perform the terms of a confirmed plan. Section 362(c)(3)(C) requires that the statutory presumption of bad faith be rebutted by "clear and convincing evidence." Here, the evidence submitted to the Court merely asserts that Debtor’s income has increased, without any detail describing or evidence supporting the change in Debtor’s financial circumstances.
Furthermore, Judge Houle’s self-calendaring procedures require that Lemuel Jaquez, of Ghidotti Berger LLP, be served with the instant motion because he filed a motion for relief from the automatic stay on December 12, 2019, in Debtor’s prior case. This motion, however, was not served on Mr. Jaquez.
For the foregoing reasons, the Court is inclined to DENY the motion. APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Juan Martinez Represented By Rebecca Tomilowitz
Movant(s):
Juan Martinez Represented By Rebecca Tomilowitz Rebecca Tomilowitz Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SUSAN F. FONTECHA
EH
Docket 15
Pursuant to 11 U.S.C. § 362(c)(3)(B), courts may continue the automatic stay only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. Here, the Debtor in her declaration explained in detail the reasons why her prior bankruptcy filings ended up with dismissal. According to the Debtor’s declaration, the Debtor and her husband used to own three pieces of real property. Their financial difficulty started with her husband’s illness, which triggered her first bankruptcy filing in March 2018. The first bankruptcy case was dismissed for failure to provide proof of post-petition mortgage payments. Soon after the dismissal, her husband passed away and one of the properties was foreclosed. The Debtor filed her second bankruptcy case in March 2019 when her rental property located in Los Vegas faced foreclosure. After the secured creditor of that property agreed to a loan modification, the Debtor decided not to complete the schedules for the filing. Her second bankruptcy case was dismissed for failure to file necessary documents. The Debtor’s third bankruptcy case was filed in May 2020 when her residence property located in Corona would be foreclosed. The Debtor voluntarily dismissed the third bankruptcy case because it had only 30-day stay, and she missed the deadline to file a
11:00 AM
motion to continue the automatic stay.
It appears that none of the prior three unsuccessful bankruptcy cases from 2018 to 2020 were caused by the Debtor’s failure to make plan payments. In addition, the Debtor claims that she will receive a contribution of $3,550 per month from her daughter who resides with her and attached her daughter’s paystubs to the motion. This contribution is also reflected in Schedule I.
For the foregoing reasons, the Court finds that the Debtor has rebutted the presumption that the case was not filed in good faith and is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Susan F Fontecha Represented By Paul Y Lee
Movant(s):
Susan F Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Docket 337
APPLICABLE LAW:
11 U.S.C. § 1141(d)(5)(A)
RELIEF REQUESTED:
Debtors request entry of discharge under 11 U.S.C. § 1141(d)(5)(A).
BACKGROUND
On December 9, 2010, Ronald Edward Orantes and Laura Mier Orantes ("Debtors") filed a voluntary Chapter 11 bankruptcy. On January 21, 2014, the Debtors’ Seventh Amended Plan (the "Plan") was confirmed. Pursuant to Article VI.A of the Plan, the Debtors would receive a discharge of all pre-confirmation debts upon completion of all plan payments. On October 7, 2014, the Court entered an order granting the Debtors’ motion for final decree but denied their motion for entry of a discharge on the basis that a discharge was premature. On October 30, 2014, the case was closed.
On February 5, 2020, the Debtors filed a motion to reopen the case for the purpose of requesting a discharge. The Court granted the motion on March 25, 2020. On May 26, 2020, the Debtors filed their certifications about a financial management course. On July 14, 2020, the Debtors filed this instant application for entry of discharge.
LEGAL DISCUSSION
Section 1141(d)(5)(A) of the Bankruptcy Code provides that in a chapter 11 case in which the debtor is an individual, "unless after notice and a hearing the court orders
2:00 PM
otherwise for cause, confirmation of the plan does not discharge any debt provided for in the plan until the court grants a discharge on completion of all payments under the plan." Although the general rule in Chapter 11 cases involving individual debtors is that a discharge will not be entered until the debtor has made all plan payments, courts may deviate from that general rule "after notice and a hearing" if it finds cause. In re Sheridan, 391 B.R. 287, 290 (Bankr. E.D.N.C. 2008).
Section 1141(d)(5)(A) gives no guidance or examples of what might constitute cause for granting a discharge prior to the completion of all plan payments. One criterion that is persuasive to some courts is that "cause" must be determined based on the totality of the facts and circumstances of each case. In re Grogan, 2013 WL 4854313 at *9 (Bankr. D. Or. 2013). One important factor is that at a minimum, the individual Chapter 11 debtor must convince the court that he or she will and can make all future payments with high degree of certainty in order to obtain an early discharge prior to completion of payments under the plan. Id., see also In re Beyer, 433 B.R. 884, 888 (Bankr. M.D. Fla. 2009).
Here, the Debtors assert that they have completed all payments under the Plan; the bankruptcy estate has been fully administered; and there are not remaining matters other than this application. The Debtors provided a declaration of their counsel along with a history of their plan payments and the payment records. The Debtors’ counsel in his declaration states that "the convenience class payments were $4,595.42 and the Allowed Claims total is $67,642.20," and the Debtors have paid them in full. The Debtors’ plan payment history also indicates the same.1
Comparing with the terms in the Plan, the Court notices some discrepancy. In accordance with the Plan, the general unsecured claims under Class 4(b) should receive a total amount of $103,980 (33.34%). Thus, the Debtors’ actual payments is
$36,337.80 less than the amount provided in the Plan.
In addition, the Plan also provides that the Debtors should make the following payments for secured claims: (1) payments in the amount of $1,219 per month to Ocwen Loan Servicing until August 1, 2034, (2) payments in the amount of $542.77 to Wells Fargo Bank until September 1, 2037, and (3) payments in the amount of
$220.82 per month to Honda Financial Services according to the agreement terms. All of these payments seem to be ongoing and have not been paid in full.
2:00 PM
Essentially, it seems that the Debtors are requesting an early discharge for cause pursuant to section 1141(d)(5)(A). Accordingly, the Debtors are required to prove that they have the ability to make all future payments for the secured claims with high degree of certainty. In this application, however, the Debtors did not provide any evidence to show whether these payments have remained current or whether they have such a financial ability.
To sum up, the Debtors should submit supplemental evidence regarding the following issues: (1) why their actual payments for Class 4(b) ended up $36,337.80 less than the amount provided in the Plan; (2) whether they are current on the payments for the secured claims; and (3) their ability to make future plan payments to the secured creditors, as well as analysis as to cause to grant discharge early.
TENTATIVE RULING:
The Court is inclined to CONTINUE the hearing to allow the Debtors to submit supplemental evidence regarding the following issues: (1) why their actual payments for Class 4(b) ended up $36,337.80 short than the amount provided in the Plan; (2) whether they are current on the payments for the secured claims; (3) their ability to make future play payments to the secured creditors, and (4) whether cause exists to grant discharge early.
APPEARANCES REQUIRED.
Debtor(s):
Ronald Edward Orantes Represented By Javier H Castillo
Joint Debtor(s):
Laura Mier Orantes Represented By Javier H Castillo
Movant(s):
Ronald Edward Orantes Represented By Javier H Castillo
2:00 PM
Laura Mier Orantes Represented By Javier H Castillo
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
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20, 6/9/20, 7/21/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20, 2/4/20, 3/31/20, 4/21/20
EH
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
Also #15 EH
Docket 12
- NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
Movant(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
From: 8/18/20 Also #14
EH
Docket 1
- NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
Also #17 EH
Docket 179
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
From: 3/20/18, 8/21/18, 10/23/18, 11/27/18, 2/5/19, 5/7/19, 7/30/19, 10/8/19, 10/29/19, 1/14/20, 2/25/20
Also #16 EH
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Also #19 - #21
EH
Docket 368
Rosenstein & Associates: $245,239.00 in fees and $22,034.77
Brass Tax Ryder Professional Group, Inc.: $2,751.20
-On August 11, 2020, the US Trustee filed an objection to Rosenstein & Associates’ motion, requesting to reduce their fees by $12,561.
-On August 19, 2020, the US Trustee and Rosenstein & Associates reached a stipulation. Per the stipulation, Rosenstein & Associates will reduce their fees by
$4,181.50 to $241,057.50 in fees and costs in the amount of $22,034.77, for a total request of $263,092.27.
2:00 PM
On July 28, 2020, Rosenstein & Associates ("Counsel") and Brass Tax Ryder Professional Group, Inc. ("Accountant") filed motions for approval of final professional fees and expenses. Counsel requests an aggregate of $267,273.77 for services rendered from April 12, 2019 to June 2, 2020. Counsel has been awarded and paid in the amount of $50,000 pursuant to the interim fee order entered April 7, 2020. On August 11, 2020, the US Trustee filed an objection to Counsel’s motion, requesting to reduce their fees by $12,561. On August 19, 2020, the US Trustee and Counsel reached a stipulation. Per the stipulation, Counsel will reduce their fees by
$4,181.50 to $241,057.50 in fees and $22,034.77 in costs, for a total request of
$263,092.27. With a credit for the interim compensation in the amount of $50,000, the balance will be $213,092.27.
Accountant requests $2,751.20 for services rendered from January 1, 2020 to June 2, 2020. Accountant has been awarded and paid interim fees in the amount of
$11,506.35 pursuant to the interim fee order entered April 7, 2020.
The Application of Accountant
The Court has reviewed the application of Accountant and finds the compensation requested to be generally reasonable pursuant to the factors outlined in 11 U.S.C.
§ 330(a). The Court further notices that notice and service appear proper, and the Court has not received any opposition to the requested fees, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
The Application of Counsel
Having reviewed the application for Counsel, the US Trustee’s objection and the stipulation, the Court finds the amounts requested to be generally reasonable, and the tasks completed to be generally necessary to the administration of the case or beneficial to the bankruptcy estate.
The Court is inclined to APPROVE the requested fees and expenses of Accountant in their entirety, and APPROVE the requested fees and expenses of Counsel in the reduced amount of $241,057.50 in attorney’s fees and $22,034.77 in costs.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Also #18 - #21
EH
Docket 369
Rosenstein & Associates: $245,239.00 in fees and $22,034.77
Brass Tax Ryder Professional Group, Inc.: $2,751.20
-On August 11, 2020, the US Trustee filed an objection to Rosenstein & Associates’ motion, requesting to reduce their fees by $12,561.
-On August 19, 2020, the US Trustee and Rosenstein & Associates reached a stipulation. Per the stipulation, Rosenstein & Associates will reduce their fees by
$4,181.50 to $241,057.50 in fees and costs in the amount of $22,034.77, for a total request of $263,092.27.
2:00 PM
On July 28, 2020, Rosenstein & Associates ("Counsel") and Brass Tax Ryder Professional Group, Inc. ("Accountant") filed motions for approval of final professional fees and expenses. Counsel requests an aggregate of $267,273.77 for services rendered from April 12, 2019 to June 2, 2020. Counsel has been awarded and paid in the amount of $50,000 pursuant to the interim fee order entered April 7, 2020. On August 11, 2020, the US Trustee filed an objection to Counsel’s motion, requesting to reduce their fees by $12,561. On August 19, 2020, the US Trustee and Counsel reached a stipulation. Per the stipulation, Counsel will reduce their fees by
$4,181.50 to $241,057.50 in fees and $22,034.77 in costs, for a total request of
$263,092.27. With a credit for the interim compensation in the amount of $50,000, the balance will be $213,092.27.
Accountant requests $2,751.20 for services rendered from January 1, 2020 to June 2, 2020. Accountant has been awarded and paid interim fees in the amount of
$11,506.35 pursuant to the interim fee order entered April 7, 2020.
The Application of Accountant
The Court has reviewed the application of Accountant and finds the compensation requested to be generally reasonable pursuant to the factors outlined in 11 U.S.C.
§ 330(a). The Court further notices that notice and service appear proper, and the Court has not received any opposition to the requested fees, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
The Application of Counsel
Having reviewed the application for Counsel, the US Trustee’s objection and the stipulation, the Court finds the amounts requested to be generally reasonable, and the tasks completed to be generally necessary to the administration of the case or beneficial to the bankruptcy estate.
The Court is inclined to APPROVE the requested fees and expenses of Accountant in their entirety, and APPROVE the requested fees and expenses of Counsel in the reduced amount of $241,057.50 in attorney’s fees and $22,034.77 in costs.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
and 507(A); and for Other Relief; Declaration of Chris Kwasizur in Support Thereof
Also #18 - #21
EH
Docket 375
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Falcon BP II, LLC Represented By Jeremy V Richards
2:00 PM
EH
Docket 364
APPLICABLE LAW:
FRBP 3022, §350(a)
RELIEF REQUESTED:
Debtors move for the Court to enter a final decree and close its case.
BACKGROUND
On April 12, 2019, Woodcrest Ace Hardware, Inc., 9 Fingers, Inc., P&P Hardware, Inc., Riverside Ace Hardware, Inc., and Wildomar Ace Hardware, Inc. (collectively, "Debtors") filed their Chapter 11 voluntary petitions.
DISCUSSION:
After an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case. 11 U.S.C. § 350; Fed. R. Bankr. P. 3022. Courts consider the following factors in evaluating whether an estate has been fully administered: (1) whether the order confirming the plan has become final; (2) whether deposits required by the plan have been distributed; (3) whether the property proposed by the plan to be transferred has been transferred; (4) whether the debtor (or its successor under the plan) has assumed the business or management of the property dealt with by the plan; (5) whether payments under the plan have commenced; and (6) whether all motions, contested
2:00 PM
matters and adversary proceedings have been finally resolved. See Fed. R. Bankr. P. 3022, Adv. Comm. Notes (1991).
Here, the order confirming the Debtors’ First Amended Joint Chapter 11 Plan ("Plan") was entered on June 2, 2020. No property transfers remain to be carried out under the Plan. The Debtors are current on the obligation to pay quarterly fees to the office of the US Trustee. All priority claims (i.e. tax claims) have been paid in full or are being paid in accord with the agreements with the claimants. The Debtors have commenced the plan payments and have been current. The only remaining motions are the final fee applications of Rosenstein & Associates and Brass Tax Ryder Professional Group, Inc. The Debtors contend that upon the Court approval of the applications, payments will be made pursuant to agreements with the professionals.
After examining the status of the administration of the Debtors’ bankruptcy estate in accord with the six factors mentioned above, the Court finds the estate will be fully administered after the pending fee applications are approved.
TENTATIVE RULING:
The Court is inclined to GRANT the motion conditioning that the pending fee applications will be approved.
APPEARANCES REQUIRED.
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
Movant(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein Robert B Rosenstein
2:00 PM
Robert B Rosenstein Robert B Rosenstein
11:00 AM
Docket 22
No opposition has been filed. Service was Improper
The application for compensation of the Trustee has been set for hearing. The Court intends to waive Trustee’s failure to comply with Local Rule 2016-(1)(c)(4)(A).
Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 524.50 Trustee Expenses: $ 60.13
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):
Heidi Gomez Represented By
Amanda G Billyard
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 17
On March 17, 2020, Gary & Alicia Chavez ("Debtors") filed a Chapter 7 voluntary petition. Among the assets of the estate is a 2006 Chevrolet Trailblazer LS Extended (the "Property"). 800 Loanmart and Speedy Cash ("Creditors") hold security interests in the Property.
On June 22, 2020, Debtors filed a motion to redeem the Property. Debtors contend that the value of the Property should be determined to be $1,569. Debtors arrive at this value by using the low end of the Kelly Blue Book private party value range. The Court also notes that the motion does not actually identify the amount of Creditors’ secured claims.
On July 21, 2020, the Court set the matter for hearing, instructing Debtors to file a supplement "establishing the retail value of the collateral at issue and/or detailing the appropriate standard for determining value in the context of a § 722 motion." The Court’s order also stated that the "supplement should also include competent evidence establishing the amount and priority of the security interests in the collateral."
11:00 AM
On August 19, 2020, Debtors filed a supplement contending that the Kelly Blue Book private party value was an appropriate valuation for a motion to redeem. The supplement also contained a declaration declaring that 800 Loanmart was owed approximately $5,058 and Speedy Cash was owed approximately $4,968.
11 U.S.C. § 722 provides:
An individual debtor may, whether or not the debtor has waived the right to redeem under this section, redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempted under section 522 of this title or has been abandoned under section 554 of this title, by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien in full at the time of redemption.
11 U.S.C. § 506(a)(2) provides the applicable valuation standard:
If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined.
11:00 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 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 utilized the low end of the Kelly Blue Book private party range. Based on the foregoing, the Court does not find the proffered valuation to adequate establish valuation under § 506(a)(2).
Tentative Ruling:
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Gary A. Chavez Represented By Benjamin R Heston
11:00 AM
Joint Debtor(s):
Alicia A. Chavez Represented By Benjamin R Heston
Movant(s):
Gary A. Chavez Represented By Benjamin R Heston
Alicia A. Chavez Represented By Benjamin R Heston
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:20-01049 SchoolsFirst Federal Credit Union v. Bonto
From: 7/1/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Flory Cea Bonto Represented By Christopher J Langley
Defendant(s):
Flory Cea Bonto Represented By Michael Smith
Joint Debtor(s):
Jeffrey B. Bonto Represented By Christopher J Langley
Plaintiff(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:19-01163 O'Neil et al v. Perez et al
From: 1/29/20, 5/27/20, 7/22/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
Plaintiff(s):
Al Karlson Represented By
Edmond Richard McGuire
2:00 PM
Dixie Karlson Represented By
Edmond Richard McGuire
Michael O'Neil Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01063 Chen et al v. Bastorous et al
(Dismissed as to Mike Bareh 9/4/18) (Dismissed as to Bernadette Shenouda 1/2/19) HOLDING DATE
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20, 3/18/20, 7/15/20, 7/29/20
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mark Bastorous Represented By Thomas F Nowland Douglas L Mahaffey
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 Douglas L Mahaffey
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
(HOLDING DATE)
From: 1/8/20, 4/8/20, 4/29/20 Also #7
EH
Docket 11
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed a Chapter 7 voluntary petition. On August 22, 2019, Robert S. Whitmore (the Chapter 7 "Trustee") brought an adversary proceeding against Jose Gularte ("Mr. Gularte") and Marjorie Elizabeth Gularte-Torres ("Mrs. Gularte-Torres") (collective, "Defendants") for the benefit of the estate.
The adversary proceeding arose from a real estate transaction between the Debtor and the Defendants. Debtor and her spouse, Edgar S. Torres, bought real estate at 1527 Fairwood Way, Upland, CA 91786 (the "Property) on November 2, 1990.
Less than two years before the Petition Date, on December 29, 2017, Debtor and her spouse transferred the Property to Mr. Gularte. Mr. Gularte then proceeded to transfer the deed to himself and his wife, Mrs. Gularte-Torres.
The Trustee alleges that the transfer among the parties is fraudulent and seeks to avoid the transfer and recover the Property for the estate.
2:00 PM
The Trustee alleges that Defendants are insiders of the Debtor: Mr. Gularte is
the debtor’s son-in-law, and Mrs. Gularte-Torres is the debtor’s daughter. Because Defendants and Debtor still reside at the same Property after the transfers occurred, Trustee alleges that Debtor still retains the benefit of ownership. The Trustee alleges that the consideration given was less than a reasonably equivalent value: a seller credit and a gift were given. The Trustee avers that the value of the consideration given was less than the value of the Debtor’s equity of $154,424.76.
The Trustee served the summons and complaint on Defendants by first-class mail to Defendants’ home on August 23, 2019. After forty-eight days without Defendants pleading or defending against the relief sought by the Trustee, the Trustee requested an entry for default judgment. On October 11, 2019, the Clerk of the Court entered a default judgment against defendants.
The Trustee now files this motion for an entry of default judgment by the Court to avoid and recovery the Property.
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C. §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
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"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
Debtor’s lead bankruptcy case (19-bk-14650-MH) is currently pending in this Court.
Personal Jurisdiction
Jose Gularte and Marjorie Elizabeth Gularte-Torres are residents of California.
Thus, personal jurisdiction is proper.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Trustee has fulfilled such requirements in his request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person;
the defendants are not currently on active duty in the armed forces, etc. The Trustee also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b). Thus, the Clerk entered a valid entry of default.
2:00 PM
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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. The Trustee has not asked for the value of the Debtor’s equity in the Property, $154,424.76. Instead, the Trustee has asked the Court to rule that the transfers were fraudulent, the transfers should be avoided, and that the Property should be returned to the Debtor’s bankruptcy estate. Thus, by requesting an injunctive relief, the Trustee has correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the
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merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitle v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When it comes to the first factor, the Trustee, being the arbiter of the estate would only be prejudice in his responsibility to provide the best interest of parties in interest. That is, by not recovering the property, the creditors would receive potential less than what they could have.
Merits of Plaintiff’s Claim
The general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). "A default establishes the well-pleaded allegations of a complaint unless they are incapable of proof or are contrary to facts judicially noticed or to uncontroverted material in the file." In re McGee, 359 B.R. 764 (B.A.P 9th Cir.) (emphasis added by italicizing) (citing In re Consolidated Pretrial Proceedings in Air West Sec. Litigation, 436 F. Supp. 1281, 1286 (N.D. Cal. 1977)). A well-pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
The Trustee alleges, pursuant to 11U.S.C. § 548(a)(1)(A), that Debtor within two years of filing her petition transferred the Property with actual intent to hinder, delay, or defraud. The word ‘intent’ is used to denote that the actor desire to cause consequences of his act. [Vol 5] Collier on Bankruptcy ¶ [548.04] (Richard Levin & Henry J. Sommer eds., 16th ed.). "If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id.
Because it is difficult to prove actual intent, courts infer fraudulent intent from the circumstances surrounding the transfer; including but not limited to (1) insolvency or other unmanageable indebtedness on the part of the debtor, (2) special relationship between the debtor and transferee; and after the transfer, (3) retention by the debtor of the property. In re Acequia, Inc. 34 F.3d 800 (9th Cir. Ct. App. 1994). These circumstances are universally
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recognized as the "badges of fraud." Id.
The Trustee has provided evidence that the value of the Property,
$575,000.000, which was agreed upon by Mr. Gularte and Debtor and her husband, was not given for consideration. (Dkt. No. 11, Ex. 5). In fact, something substantial less was given as consideration because Mr. Gularte received a "gift of equity" in the amount of $150,900.00. This special relationship—Defendants are the daughter and son-in-law of Debtor— precipitated such a gift alleged the Trustee. Furthermore, based on Debtor’s commencement documents, Debtor still lives at the Property, showing that Debtor still retains the benefit of the Property. (Dkt. No. 11, Ex. 7).
Taken as true and neither incapable of proof nor contrary to facts observed by the Court, the Trustee’s allegations are sufficient to prove the claim of an actual fraudulent transfer under 11 U.S.C § 548(a)(1)(A).
Moreover, taking the allegations of the compliant as true as to the second and third claims for relief, the Trustee has sufficiently alleged the elements of a claim for constructively fraudulent transfer against Defendants.
This leaves only one claim of relief left. Whether the Court grants recovery of the Property pursuant to 11 U.S.C. § 550(a). The Court has ruled that Trustee’s allegations are sufficient to prove that the transfer of the Property was fraudulent. Thus, making the transaction avoidable.
Based on the deeds transferring interest in the Property, Mr. Gularte is an immediate transferee and Mrs. Gularte-Torres is a mediate transferee.
Irrespective of how they are defined, 11 U.S.C. § 550(a)(1) and (a)(2) permit the Trustee to recover the property from the Defendants. Seeing no reason to do otherwise, the Court grants the Trustee the Property pursuant to 11 U.S.C. § 550(a).
Possibility of Disputes of Material Facts
The Trustee provided evidence from the Debtor’s commencement document stating the Debtor still resides at the Property. The Trustee provided evidence of the transfer of interest in the property from Debtor and her husband to Defendants. Dkt No. 11, Ex. 3, 4, and 5. Trustee provided evidence of the value of the Property and the consideration given. Dkt. No. 11, Ex 5.
2:00 PM
Furthermore, Trustee duly served Defendants with process in this matter. Thus, the Court finds that the possibility of disputes of material facts is unlikely.
Sum at Stake in the Action
Even though the Trustee is looking for injunctive relief, the value of said property is significant to the estate. The last consideration given for the Property valued it at $575,000.00. Dkt. No.11, Ex 5. The Property would increase the bankruptcy estate by twenty-fold, weighing in favor of Defendants.
Excusable Neglect
Here, Defendants failed to plead or otherwise defend against the claim, and the Court does not otherwise see any basis for excusable neglect in the pleadings.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
2:00 PM
Thus, the Court is inclined to GRANT the motion to the extent of awarding Trustee judgment on the first, second, third, and fourth claims of relief.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Movant(s):
Robert S. Whitmore Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 10/16/19, 12/11/19, 1/8/20, 4/8/20, 4/29/20
Also #6 EH
Docket 1
- NONE LISTED -
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Plaintiff(s):
Robert S. Whitmore Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 102
- NONE LISTED -
Debtor(s):
Jaime Villalobos Represented By
Rabin J Pournazarian
Joint Debtor(s):
Jennifer Villalobos Represented By
Rabin J Pournazarian
Movant(s):
Jaime Villalobos Represented By
Rabin J Pournazarian
Jennifer Villalobos Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Harinder Heera Represented By Christopher J Langley Michael Smith
Movant(s):
Harinder Heera Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 17
- NONE LISTED -
Debtor(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Movant(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/14/20 EH
Docket 34
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Movant(s):
Yan Zhang Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20, 7/23/20
Also #6 & #7 EH
Docket 52
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20, 7/27/20
Also #5 & #7 EH
Docket 44
On April 15, 2019, Mark & Elizabeth Swartz ("Debtors") filed a Chapter 13 voluntary petition. On June 21, 2019, The Bank of New York Mellon f/k/a The Bank of New York as successor Indenture trustee to JPMorgan Chase Bank, National Association for CWHEQ Revolving Home Equity Loan Trust, Series 2006-F ("Creditor") filed a proof of claim for a secured claim in the amount of $157,959.06 ("Claim 5").
On July 10, 2019, Debtors filed an objection to Claim 5. Debtors argued that the information filed in support of Claim 5 is inadequate pursuant to the Federal Rules of Bankruptcy Procedure, and that, as a result, Creditor has failed to meet its burden of proof. At the hearing of August 22, 2019, the Court noted that there appeared to be an error on the proof of service which resulted in Creditor’s notice address being misstated. For that reason, the Court continued the matter for proper service.
11:00 AM
On August 30, 2019, Debtors filed a renewed objection to Claim 5. The Court notes that notice and service are now proper.
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
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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 because such claim is contingent or unmatured;
FED. R. BANKR. P. Rule 3001(c)(2) identifies certain required information that a claimant must attach to a proof of claim in order for the claim to be afforded prima facie validity. In particular, the Court notes that Rule 3001(c)(2)(A) and (C) provide requirements related to the itemization of non-principal amounts and escrow amounts, respectively.
The Court finds Debtors’ assertion that the supporting information is inadequate to be well-founded. The mortgage proof of claim attachment includes the following information. Part 2 identifies a principal balance of $98,982.98, interest due of
$55,486.25, and fees and costs of $3,489.83. Part 3 identifies a pre-petition arrears of
$87,692.60, of which $84,202.77 was principal and $3,489.83 was the aforementioned costs. And Part 4 asserts that the month payment includes $607.39 for principal and interest and $549.90 for escrow.
11:00 AM
The two figures which do not appear to be justified in the supporting documentation are the $55,486.25 in interest and the $549.90 monthly payment for escrow. The Court notes that the loan payment history spreadsheet provided by Creditor does not contain any itemization for interest or escrow, and, furthermore, the entire column relating to accrued interest balance and accrued escrow balance is zeroed out.
Because Creditor has failed to separate principal, interest, and escrow, as directed by FED. R. BANKR. P. Rule 3001(c)(2), and, noting that Debtors have declared that there is no escrow account relating to the second mortgage, the Court is unable to determine the validity or amount of the prepetition default identified in column G of the loan payment history. The Court has also not been provided with any itemization or calculation of the interest amount, alleged to be $55,486.25.
As a result, the Court is inclined to reduce Claim 5 to $102,472.81, representing the principal balance and fees and costs due in part 2 of the loan payment history, with a prepetition arrearage amount of $0.
APPEARANCES REQUIRED.
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
11:00 AM
Movant(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Elizabeth M Swartz Represented By Joseph A Weber Joseph A Weber Fritz J Firman Fritz J Firman
PYOD LLC Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/11/19, 8/22/19, 10/3/19, 11/7/19, 12/19/19, 2/20/20, 4/16/20, 5/28/20, 7/23/20
Also #5 & #6 EH
Docket 15
- NONE LISTED -
Debtor(s):
Mark G Swartz Represented By Joseph A Weber Fritz J Firman
Joint Debtor(s):
Elizabeth M Swartz Represented By Joseph A Weber Fritz J Firman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Jose Omar Zapata Represented By
J. Luke Hendrix
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michiko Turner Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Raja Ahmed Represented By
Dana Travis
Joint Debtor(s):
Razia Begum Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Claudia Yesenia Covarrubias Represented By Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Guillermo Manuel Reyna Represented By Norma Duenas
Joint Debtor(s):
Cindy Reyna Represented By
Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Charles J. Smith Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robert Lee Thomas, Sr. Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christopher C Rebosura Represented By Kevin Tang
Joint Debtor(s):
Sayda D Rebosura Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sheila Bocala Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
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
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Kevin Antonio Drew Represented By Todd L Turoci
Joint Debtor(s):
Nina Janell Drew Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
James House Represented By
Todd L Turoci
Joint Debtor(s):
Adria House Represented By
Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- NONE LISTED -
Debtor(s):
George P. Solorio Jr. Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- 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 91
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 56
- NONE LISTED -
Debtor(s):
Damaris Denise Redgray-Johnson Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
William Meineke Represented By Todd B Becker
Joint Debtor(s):
Kathie Meineke Represented By Todd B Becker
Trustee(s):
Larry D Simons (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Darryle Barker Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 45
- NONE LISTED -
Debtor(s):
Jorge Luis Ibarra Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Docket 6
Debtor(s):
Ashni Mala Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
EH
Docket 43
- NONE LISTED -
Debtor(s):
Joshua Michael Thomson Represented By Edward G Topolski
Joint Debtor(s):
Katherine Naomi Thomson Represented By Edward G Topolski
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 35
- NONE LISTED -
Debtor(s):
Dari Kelley Represented By
Sundee M Teeple
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
EH
Docket 62
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Movant(s):
Lakeview Loan Servicing, LLC Represented By Daniel K Fujimoto Dane W Exnowski Caren J Castle
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20, 6/30/20, 7/28/20, 8/18/20 EH
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing
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Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion.
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APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
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MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 12
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
MARIA ESTHER ADRIANO Represented By
Robert W Stewart Jr
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Kirsten Martinez
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
Docket 8
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Danelle Miranda Sandoval Represented By Ivan Trahan
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
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Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: MICHAEL SLOWINSKI
EH
Docket 14
Debtor had a previous case dismissed on January 30, 2020. Therefore, pursuant to 11
U.S.C. § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date.
11 U.S.C. § 362(c)(3)(C)(i)(II)(cc) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to perform the terms of a plan confirmed by the Court. Therefore, pursuant to 11 U.S.C. § 362(c)(3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor has cited a variety of factors (change in employment, decrease in domestic support payments, receipt of financial assistance from daughter, and retention of counsel) in support of his motion to continue the automatic stay. The Court notes that the evidence submitted by Debtor, however, lacks the requisite detail to enable the Court to assess the extent of the change in circumstances and determine whether Debtor is likely to successfully complete his proposed Chapter 13 plan.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Movant(s):
Michael J. Slowinski Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 691
The Court, having reviwed the motion, service being proper and no opposition having been filed, is inclined to find that Debtor has sufficiently articulated a legitimate business justification to enter into the proposed agreements, and, as such, 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):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich
2:00 PM
David M Goodrich Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
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Adv#: 6:20-01097 Sunyeah Group Corporation v. Kippartners, L.P.
Also #10 EH
Docket 4
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Defendant(s):
Kippartners, L.P. Represented By Sean A OKeefe
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
Plaintiff(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
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Adv#: 6:20-01097 Sunyeah Group Corporation v. Kippartners, L.P.
$350.00). Complaint For: (1) Declaratory Relief; (2) Avoidance of Preferential Transfers Pursuant to 11 U.S.C. § 547; (3) Avoidance of Fraudulent Transfers Pursuant to 11 U.S.C. § 548; (4) Avoidance of Post-Petition Transfers Pursuant to 11 U.S.C. § 549; (5) Recovery of Value of Avoidable Transfers Pursuant To 11 U.S.C. § 550; (6) Turnover of Security Deposit Pursuant To 11 U.S.C. § 542; and (7) Disallowance of Claim Pursuant to 11 U.S.C. § 502(d) Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)),(91 (Declaratory judgment))(Kwong, Jeffrey)
From: 7/21/20 Also #9
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Defendant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
Plaintiff(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
Also #12 EH
Docket 110
6/30/20
BACKGROUND:
On December 30, 2019 (hereinafter the "Petition Date"), Sunyeah Group Corporation, a California Corporation (hereinafter "SGC"), filed a Chapter 11 voluntary petition. SGC is operating its business, managing its affairs, and administering its estate as a debtor-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108. SGC is a manufacturer of, among other things, annealed, customized, and tempered glass. Dkt. No. 10, Pg. 2.
Kippartners, L.P. (hereinafter "KLP") is the owner of the industrial building located at 930 Wanamaker Avenue, Ontario, California (hereinafter the "Industrial Building"). Claim 14-1. By its motion, KLP seeks conversion of Debtor’s case to Chapter 7.
ANALYSIS:
"On request of a party in interest…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…" 11 U.S.C. § 1112(b)(1) (emphasis added). Kippartners has standing as a creditor to initiate such a motion. 7
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Collier on Bankruptcy ¶ 112.04[1] (Richard Levin & Henry J. Sommer eds., 16th ed.) (stating that a party in interest set forth in 11 U.S.C. 1109 includes "creditors, a creditors’ committee, equity security holder and an equity security holder committee, and indenture trustee, as well as a trustee and the debtor.").
Under 11 U.S.C. § 1112(b)(4), the Bankruptcy Code contains sixteen examples of what constitute cause for conversion or dismissal. The list is not exhaustive. In re Ameribuild Constr. Mgmt., Inc., 399 B.R. 129, 131 n. 3 (Bankr. S.D.N.Y. 2009) (stating that "the list contained in 1112(b) is not exhaustive. The Court will be able to consider other factors as they arise, and to use its equitable powers to reach an appropriate result in individual cases.").
Furthermore, the standard to prove "cause" is by a preponderance of the evidence. In re Corona Care Convalescent Corp., 527 B.R. 379, 382 (Bankr. C.D. Cal. 2015). "The definition of a preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that that the fact sought to be proved is more probable than not." In re Cooper, 2012 Bankr. Lexis 6119, *6 (Bankr. E. D. Cal. 2012).
Here the Court is inclined to find "cause" exists to convert the Debtor’s case to one under Chapter 7 pursuant to 11 U.S.C. § 1112(b)(1) under a totality analysis for the following primary reasons, explained in greater detail below:
Debtor has no business operations (on petition date or currently) and no possibility of future business operations;
Debtor has no employees (on petition date or currently);
Debtor’s assets on petition date were comprised of only personal property located at debtor’s former business premises, and allegedly certain accounts receivable, and Debtor’s assets currently consist of approximately $700,000 in cash and allegedly certain accounts receivable (with significant amounts of
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administrative expenses having already been accrued by Debtor’s counsel and likely KLP);
Liens in favor of Debtor’s principals were perfected 12 days before the petition date but not set aside by current principals, notwithstanding request by Movant, until 6 months after the case was filed and 4 days after Movant filed its motion to dismiss; and
The principals’ liens were not listed in the Statement of Financial Affairs, notwithstanding that Debtor was clearly aware of them when the SOFA was filed, having specifically referenced them in a prior stipulation for use of cash collateral.
Given this conclusion, before turning to Debtor’s burden in opposing the motion and setting aside the issues regarding the principals, the Court first notes that one key practical question it is faced with in considering the motion is what alternative provides the most cost effective means of resolving the case: having a chapter 7 trustee administer the case with an additional layer of administrative expenses, or having Debtor’s counsel’s prosecute the case to conclusion, with an associated increase in counsel's fees and costs. It is impossible to conclusively evaluate the greater costs on this (or generally any) record, but the Court believes strongly that a disclosure statement and plan process will certainly be more expensive than a chapter 7 distribution, even net of Trustee counsel fees incurred getting up to speed, and given the facts above the Court cannot help but believe that there was no need for the greater expenses of a chapter 11 case on the petition date, or at this point, other than to protect the principals’ interests – protection that would be lost in a Chapter 7. Stated otherwise, it is this combination of factors: lack of confidence, based on principals' actions, in their ability to direct Debtor’s actions for the benefit of creditors, a relatively small and finite amount of estate assets shrinking daily by increasing administrative expenses, no hope of rehabilitation, and what the Court believes will be greater expenses continuing in a chapter 11 plan process where there is no need for one, that serves as "cause" to convert.
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Here simply no revival of the Debtor’s business, much less restructuring, will
occur. This is simply now a garden-variety situation of mostly liquidated assets needing to marshaled by a trustee and distributed to creditors, with some di minimis ancillary activity, such as liquidating accounts receivable and resolving the asset ownership dispute, that can easily be performed by a trustee. Even the liquidation of assets earlier in the case was simply an sale of equipment, not any kind of ongoing business sale usually contemplated in the Chapter 11 liquidation.
Finding cause to convert, the Court turns to the Debtor’s burden to demonstrate unusual circumstances showing that conversion is not in the best interest of creditors or the estate. Ultimately, the Court is not persuaded that any unusual circumstances exist here.
In particular, there is no extensive learning curve for a Chapter 7 trustee in this case. There is no evidence that collecting accounts receivable and distributing cash in this case will be complicated. Plus the issues regarding asset ownership do not appear particularly extensive or complex. As an aside, the court approval of the cash collateral stipulation that includes the date that the principals’ lien recordation does not somehow bless or immunize the principals of their failure to disclose. It is simply not the Court’s burden to scrutinize cash collateral stipulations such as this for issues such as whether alleged liens are valid, much less preferential.
There appears to be some confusion in the briefing as to whether conversion was requested on the basis that the case was filed in bad faith, or on bad faith that exists currently, or otherwise. Ultimately, as noted above and otherwise for reasons stated in the moving papers, the Court simply finds uncontroverted cause to grant the motion, noting that a number of the elements in support of cause also serve as factors in a finding of bad faith.
As to the evidentiary objections filed by Debtor, the Court sustains all objections based on relevancy, except as to the last statement, which objection is overruled.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
2:00 PM
Also #11 EH
Docket 94
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
Movant(s):
Kippartners, L.P. Represented By Sean A OKeefe
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EH
Docket 17
Service: Proper Opposition: Yes
Section 522(f)(1) of the Bankruptcy Code provides 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 §522(b), if such lien is (A) a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)); or (B) a nonpossessory, non-purchase-money security interest in household furnishings or goods as specified, tools of a trade, or health aids. 11 U.S.C. § 522(f). §101(36) defines "judicial lien" as a "lien obtained by judgment levy, sequestration, or other legal or equitable process or proceeding." 11
U.S.C. §101(36). Regarding a statutory lien, §101(53) defines it as a "lien arising solely by force of a statute on specified circumstances or conditions, …, but does not include security interest or judicial lien, …." 11 U.S.C. § 101(53).
Here, §522(f)(1) does not apply to Creditor’s assessment lien. Creditor’s assessment lien is not a judgment lien or a nonpossessory, non-purchase-money security interest. It was created pursuant to California Civil Code § 5675(a)1, not by a process or proceeding prescribed in §101(36). Moreover, Debtor’s primary arguments regarding Creditor’s assessment lien is invalid focus on Creditor’s failure to comply with the procedural requirements for recording an assessment lien under California state law. These arguments do not have bearings for determining whether to avoid a lien per § 522(f)(1).
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In addition, it appears that Debtor argues that Creditor’s lien should be avoided pursuant to § 545(2) because of Creditor’s failure to comply with California Civil Code § 5675(a). Section 545(2) provides that the trustee may avoid the fixing of a statutory lien on property of the debtor to the extent that such lien is not perfected or enforceable at the time of the commencement of the case. 11 U.S.C. § 545(2). An adversary proceeding is required for avoidance actions under § 545. Fed. R. Bankr. P. 7001(2). Accordingly, Debtor does not have standing to challenge Creditor’s assessment lien under § 545(2), and used the wrong proceeding to do so.
Based on the foregoing analysis, the Court is inclined to DENY the motion. APPEARANCES REQUIRED.
Debtor(s):
Rosa H. Colon Represented By Sean H Colon
Movant(s):
Rosa H. Colon Represented By Sean H Colon Sean H Colon
Trustee(s):
Lynda T. Bui (TR) Pro Se
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Docket 146
On November 18, 2016 ("Petition Date"), Donald Sutcliffe ("Debtor") filed a Chapter 7 voluntary petition. In Schedule C, Debtor claimed exemptions for (1) household goods and furnishing ($7,000) and (2) Subzero fridge ($2,000). There is not any objection to exemptions filed, and the deadline for filing such an objection has expired on 1/22/2017 pursuant to Federal Rules of Bankruptcy Procedure Rule 4003(b).
From and after the Petition Date (which was almost four years ago), Debtor failed to make a single mortgage payment, property tax payment, or homeowners’ association payment regarding the real property commonly known as 51417 El Dorado Dr., La Quinta, CA ("Property"). On April 22, 2020, the Trustee filed a motion ("Sale Motion") for sale of the Property free and clear of all specified liens, claims, and interests, to David W. McQuade ("Buyer"). On May 5, 2020, Debtor filed a response to the Sale Motion requesting, among other things, that the Court set a move-out date of July 31, 2020. On May 19, 2020, the Court entered an order granting the Sale Motion ("Sale Order"), with Debtor’s proposed move-out date of July 31, 2020.
Prior to the extended move-out date, Debtor began to neglect maintenance on the Property, and refused to comply with the Trustee’s reasonable requests. On July 10, 2020, the Trustee filed a motion to enforce turnover order and remove Debtor from the Property, as a result of Debtor’s refusal to comply. On July 17, 2020, the Court
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entered an order directing the Debtor to vacate the property by 9:00 a.m. on July 20, 2020 ("Final Turnover Order"). Paragraph 4 of the Final Turnover Order stated that "Debtor and any/all occupants shall not remove any fixtures or non-exempt personal property."
The Trustee’s broker informed the Trustee that Debtor had removed (a) 48-inch Sub Zero brand refrigerator; (b) two automatic dishwashers; and (c) at least two wine coolers or wine refrigerators (the "Removed Property") from the Property. Upon confirmation that these appliances were removed, the Buyer sought a quote and negotiated with the Trustee for a buyer’s credit to defray the cost of the replacement appliances. Escrow closed on the week of August 3, 2020. In connection with closing, the Buyer received a credit of $12,000.
On August 11, 2020, the Trustee filed this instant motion to approve $12,000 credit to the Buyer in connection with closing of escrow. On August 19, 2020, Debtor filed an opposition. On August 26, 2020, the Trustee filed a reply.
The Court’s Final Turnover Order stated that "Debtor and any/all occupants shall not remove any fixtures or non-exempt personal property." Per this order, two categories of property should not be removed: (1) fixtures and (2) non-exempt personal property. Here, the Court finds that the refrigerator and the two dishwashers are fixtures pursuant to California Civil Code section 660 but needs further evidence regarding the wine coolers to determine whether they should be deemed as fixtures.
Section 660 of California Civil Code defines a "fixture" as follows:
A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things
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attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.
Cal. Civ. Code § 660. Pursuant to Article 9 of the Uniform Commercial Code, fixtures are defined as goods that have become so related to particular real property that an interest in them arises under real property law. Unif. Commercial Code § 9-102. The California Residential Purchase Agreement at paragraph 8B(1) (C.A.R. Form RPA- CA, Revised 12/15) approved by the California Association of Realtors has a provision stating that "all existing fixtures and fittings that are attached to the property" are included in the sale to the buyer. C.A.R. Form RPA-CA, Revised 12/15. Common examples of what a fixture is in residential property include built-in cabinets, toilets, carpets, lighting, doors, sinks, counters, solar panels, heating units, air conditioning units, fireplaces, and built-in bookcases.
Here, the evidence provided by the Trustee indicates that the refrigerator and the two dishwashers were build-ins. It appears that they were attached to walls and surrounded by cabinets. As to the wine coolers, it is not clear whether they were build-ins or free standing. Thus, further evidence is required for determining whether the wine coolers are fixtures.
The Trustee through the motion and his declaration requests the Court (1) approve the
$12,000 negotiated credit to the Buyer, and (2) issue an order to show cause re: civil contempt against Debtor and instruct him to compensate the Estate for the damages caused by the removal of the fixtures in violation of the Court’s Final Turnover Order.
Credit of $12,000
Section 363(b)(1) of the Bankrtupcy Code 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
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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 $12,000 negotiated credit to the Buyer is part of the sale transaction and the standard of business justification applies. The declaration of the Trustee contains evidence of the valuation of the Removed Property, indicating $12,000 is a fair value for the Removed Property. See Motion, Ex. 4. Moreover, the $12,000 credit was a result of arm-length negotiations between the Trustee and the Buyer. The Trustee also contends that this $12,000 credit may avoid re-starting the sale process and the risk of further deterioration to the Property.
Debtor in the opposition [Docket # 155] argues that the Removed Property has little value because they are between 10 to 17 years old and unbranded. Especially, the wine cooler did not work at the time of the court order. Meanwhile, he argues that his ex- girlfriend sold the items to cover the expenses of moving out. These statements contradict with each other – the Removed Property with little value could be sold to cover expenses for moving out. Moreover, although Debtor disputes the valuation of the Removed Property, he failed to provide his own evidence of valuation and did not disclose how much proceeds the ex-girlfriend received from the sale of the Removed Property.
Subject to a determination of the wine coolers being fixtures, the Court concludes that the Trustee has articulated an adequate business reason for this transaction, given that the $12,000 credit appears to be a good faith, arms-length transaction, and that this deal will avoid unnecessary administrative expenses.
Order to Show Cause re: Civil Contempt against Debtor
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Along with the motion, the Trustee also submitted a declaration in lieu of a motion for order to show cause re: contempt against Debtor. The Trustee contends that the removal of those appliances is in contempt of the Final Turnover Order and caused at least $12,000 in direct damages to the estate. Moreover, a post-turnover inspection by the Trustee’s broker revealed that Debtor did not move out all of his personal items and left a substantial amount of trash on the Property. All of Debtor’s conducts caused unanticipated pre-closing costs to remedy damage of the Property and substantial attorneys’ fees and costs in this regard.
It is uncontroverted that Debtor was aware of the Court’s Final Turnover Order. In the opposition, Debtor failed to provide any justification to explain the removal of these appliances. Thus, the Court is inclined to issue an OSC re civil contempt.
The Court is inclined to CONTINUE for evidence as to the wine coolers being fixtures, and issue an OSC re civil contempt.
APPEARANCES REQUIRED.
Debtor(s):
Donald Sutcliffe Pro Se
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
MOVANT: MICHAEL SLOWINSKI
From: 9/1/20 EH
Docket 14
Debtor had a previous case dismissed on January 30, 2020. Therefore, pursuant to 11
U.S.C. § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date.
11 U.S.C. § 362(c)(3)(C)(i)(II)(cc) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to perform the terms of a plan confirmed by the Court. Therefore, pursuant to 11 U.S.C. § 362(c)(3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor has cited a variety of factors (change in employment, decrease in domestic support payments, receipt of financial assistance from daughter, and retention of counsel) in support of his motion to continue the automatic stay. The Court notes that the evidence submitted by Debtor, however, lacks the requisite detail to enable the Court to assess the extent of the change in circumstances and determine whether Debtor is likely to successfully complete his proposed Chapter 13 plan.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Movant(s):
Michael J. Slowinski Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
EH
Docket 1
- NONE LISTED -
Debtor(s):
Niels Erik Torring Pro Se
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Plaintiff(s):
Greg Thompson Represented By John G Dickman
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:18-01156 Anderson, Chapter 7 Trustee v. Williams et al
Also #5 EH
Docket 51
- 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
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Frank X Ruggier
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, 12/12/18, 1/30/19, 2/27/19, 4/10/19, 9/18/19, 10/9/19, 1/8/20, 4/8/20, 4/29/20, 7/1/20
Also #4 EH
Docket 1
- NONE LISTED -
Debtor(s):
Richard M. Thomas Represented By Keith Q Nguyen
Defendant(s):
Richard M Thomas Jr. Pro Se
Amy Williams Represented By Anerio V Altman
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#: 6:17-01085 PRINGLE v. Winn et al
From: 7/12/17, 8/23/17, 10/25/17, 5/16/18, 6/27/18, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20, 4/8/20, 4/29/20, 7/1/20
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. Pro Se
Natalia V Knoch Pro Se
Steven B Knoch Pro Se
Stacy Winn Represented By
Douglas A Plazak
2:00 PM
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#: 6:13-01171 Schrader v. Sangha
EH
Docket 382
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
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: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20, 4/22/20,
7/1/20
Also #7 EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, NA
From: 8/18/20 EH
Docket 58
Subject to Debtor having cured the delinquency and/or the parties have reached a forbearance agreement or an adequate protection stipulation, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT relief from § 1301(a) co-debtor stay
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶ 2
-DENY request under ¶ 3 for lack of cause shown
APPEARANCES REQUIRED.
Debtor(s):
Efrain Figueroa Represented By
Raj T Wadhwani
Movant(s):
11:00 AM
Bank of America, N.A. Represented By
William F McDonald III Anna Landa
Bonni S Mantovani Cassandra J Richey Alexander G Meissner Diana Torres-Brito Christopher Giacinto Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 8/25/20 EH
Docket 66
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT request under ¶¶ 2 and 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.
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
11:00 AM
Movant(s):
U.S. Bank National Association, as Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/28/20 EH
Docket 63
Service: Proper Opposition: Debtors
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association (hereinafter "U.S. Bank") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Equity Line of Credit Agreement and Disclosure Statement, Deed of Trust, and the ledger of loan payments, U.S. Bank has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
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The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim that on July 10, 2020, they made a payment of $1,000. Dkt. No. 65, Pg. 2. Debtor are "looking to enter into an adequate protection order" and they "intend to continue making all of their regular post-petition payments in a timely fashion. Id.
Parties are to abreast the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ricardo Munoz Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Roseann Munoz Represented By Michael E Clark Barry E Borowitz
Movant(s):
U.S. Bank National Association Represented By Mukta Suri Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTCHE BANK NATIONAL TRUST COMPANY
From: 7/28/20 EH
Docket 60
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Deutsche Bank National Trust Company (hereinafter "Deutsche Bank") claims that post-petition post-confirmation mortgage payments due have not been made by the Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-* 29 (Bankr. E.D. PA, 1993).
By providing the Interest-Only Period Adjustable Rate Note, Deed of Trust, Adjustable Rate Rider, Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Assignment of Deed of Trust, and the ledger of loan payments,
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Deutsche Bank has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have not opposed this motion. Thus, they have not met their burden. Pursuant to LBR 9013-1(h), if a party does not timely file and serve documents, the Court may deem this lack of action to be consent to the granting or denial of the motion. Thus, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
GRANT relief from Rule 4001(a)(3) stay. GRANT request under ¶¶ 2 and 3. The co- debtor stay of 11 U.S.C. § 1301(a) is terminated. DENY 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):
Rogelio Ramos Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Escobar Represented By Rebecca Tomilowitz
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
MOVANT: ROYAL PACIFIC FUNDING CORP
EH
Docket 36
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1).
-GRANT waiver of Rule 4001(a)(3) stay.
-GRANT Relief from § 1301 co-debtor stay.
-GRANT requests under ¶¶ 2 and 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.
Debtor(s):
Veronica Montes Represented By Nathan Fransen
Movant(s):
Royal Pacific Funding Corp. Represented By Joseph C Delmotte
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/28/20, 8/18/20 EH
Docket 37
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association, as Indenture Trustee, on behalf of the holder of Terwin Mortgage Trust (hereinafter "U.S. Bank - Terwin") claims that post-petition post- confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Note, Balloon Note Addendum Second Mortgage, Deed of Trust, Assignment of Deed of Trust, Modification Agreement and the ledger of loan
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payments, U.S. Bank - Terwin has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim (1) more payments have been made to U.S. Bank – Terwin than the motion accounts for, and (2) the property is fully provided for in the Chapter 13 plan. Dkt. No. 39. Pg. 3. Debtors also assert that all post-petition arrearages will be cured by the hearing date and all post-petition plan payments are current. Id. Debtors allege that movant’s counsel informed Debtors’ counsel that "the Debtors have brought the loan post-petition current." Id.
The parties to confirm whether Debtors are current. APPEARANCES REQUIRED.
Debtor(s):
Michael Lawrence Ricks Represented By
Richard Komisars III
Joint Debtor(s):
Debra Jean Ricks Represented By
Richard Komisars III
Movant(s):
U. S. Bank National Association, as Represented By
Kirsten Martinez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 7/28/20 EH
Docket 61
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Selene Finance LP (hereinafter "Selene Finance") claims that post-petition post-confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Fixed/Adjustable Rate Note Interest Only Fixed Period, Deed of Trust, California Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Modification Agreement, and the ledger of loan payments, Selene Finance has
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established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 63. Joint Debtor declared that she would like to enter into an adequate protection agreement in which she pays a lump sum on or before the date of the hearing on this matter and pays the remainder over a six- month timeframe in equal installments on the fifteenth of each month. Id. at Decl. in Support of Opposition to Motion for Relief from Automatic Stay.
The parties to update the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Movant(s):
Selene as servicer for Wilmington Represented By
Christina J Khil Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC dba SHELLPOINT MORTGAGE SERVICING
From: 7/21/20, 8/18/20 EH
Docket 36
Service: Proper Opposition: Yes
The Court is inclined to:
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley Michael Smith
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto James F Lewin
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MATRIX FINANCIAL SERVICES CORPORATION
EH
Docket 29
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rachell E Stirrat Represented By Neil R Hedtke
Movant(s):
Matrix Financial Services Represented By
Dane W Exnowski
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, N.A.
From: 5/26/20, 6/30/20, 7/28/20 EH
Docket 25
Service: Proper Opposition: Yes
Parties to apprise Court of status of arrears, if any. APPEARANCES REQUIRED.
Debtor(s):
Hernan Pizzulin Represented By Tom A Moore
Joint Debtor(s):
Tonya Thomas Represented By Tom A Moore
Movant(s):
Bank of America, N.A. Represented By Darlene C Vigil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
Docket 45
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Elvira Navarrete Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Rafael Ojeda Navarrete Represented By
Ramiro Flores Munoz
11:00 AM
Movant(s):
Exeter Finance, LLC Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BUDGET CAPITAL CORPORATION
From: 8/25/20 EH
Docket 33
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Movant(s):
Budget Capital Corporation Represented By Daniel K Fujimoto Alan Steven Wolf Caren J Castle
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BALBOA THRIFT & LOAN
EH
Docket 10
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Oscar Pineda Palomera Represented By James P Doan
Joint Debtor(s):
Veronica Vejar Palomera Represented By James P Doan
11:00 AM
Movant(s):
Balboa Thrift & Loan Represented By Keith E Herron
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
Docket 11
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Kevin Jaziel Olivares Pro Se
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: BANK OF THE WEST
EH
Docket 7
- NONE LISTED -
Debtor(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
From: 4/21/20 Also #17
EH
Docket 550
PROCEDURAL BACKGROUND
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. The following procedural events have occurred so far in the cases:
-On August 28, 2018, the Court approved Debtor’ use of cash collateral on an interim basis. Subsequently, the Court approved stipulations regarding the use of cash collateral. Currently, Debtor is authorized for use of cash collateral through September 30, 2020.
- On the same day, the Court granted a motion prohibiting utility companies from altering, refusing, or discontinuing service on an interim basis. An order granting the motion on a final basis was entered on October 23, 2018.
-On the same day, the Court authorized Debtor to keep two pre-petition bank accounts open on an interim basis. An order granting the motion on a final basis was entered on
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January 31, 2019.
-On the same day, the Court authorized the payment of prepetition payroll obligations and to honor prepetition employment procedures on an interim basis. On November 14, 2018, the Court granted in part, denied in part the motion on a final basis.
-On September 11, 2018, the Court approved the appointment of a patient care ombudsman.
-On September 26, 2018, the Court authorized the employment of the Turoci Firm as bankruptcy counsel.
-On October 23, 2018, the Court authorized the employment of Marshack Hays LLP as bankruptcy counsel for the Official Committee of Creditors Holding Unsecured Claims.
-On November 30, 2018, the Court entered four orders: (1) an order dening the employment of Perkins Coie LLP as counsel to the Patient Care Ombudsman retroactive to September 13, 2018; (2) an order granting the employment of Weiland Golden Goodrich LLP as Debtor’s counsel; (3) an order approving a stipulation between the H.N. and Frances C Berger Foundation and Debtor for abandonment of certain lease space; and (4) an order granting notices of setting of insider compensation.
-On December 4, 2018, the Court authorized Debtor to enter into a new commercial lease.
-On December 12, 2018, the Court extended the exclusivity period for filing a Chapter 11 plan and disclosure statement to June 11, 2019. Subsequently, on June 12, 2019 and January 23, 2020, respectively, the Court approved Debtor’s second and third motions to extend the exclusivity period. The exclusivity period was extended to February 15, 2020.
-On January 2, 2019, the Court approved the abandonment of some personal property,
e.g. office furniture and equipment, and the rejection of a lease of certain furniture and equipment.
-On February 4, 2019, the Court approved a services agreement between Debtor and Force Ten Partners LLC.
-On February 7, 2019, the Court authorized the employment of Jennifer Le, American
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HealthCare Capital as a finder.
-On February 25, 2019, the Court approved Debtor’s management agreement with Healthsure Management Services, LLC nunc pro tunc to the petition date.
-On May 9, 2019, the Court ordered the rejection of an insurance contract with Metropolitan Life Insurance Company.
-On June 27, 2019, the Court authorized Debtor to incur debt to finance the premiums for several business insurance policies.
-On June 27, 2019, the Court authorized the employment of Brutzkus Gubner as special litigation counsel.
-On August 21, 2019, the Court approved the abandonment of four Konica Minolta photocopiers.
-On December 6, 2019, the Court approved Debtor’s settlement agreements relating to Jillian Soto’s claims.
-On June 8, 2020, the Court granted Debtor’s second motion to incur debt to finance the premiums for several business insurance policies.
-On July 16, 2020, the Court approved a sale of substantially all of Debtor’s assets.
-On July 20, 2020, the Court authorized Debtor to return certain funds to the U.S. Department of Health & Human Services but denied Debtor’s waiver request.
On February 28, 2020, Debtor filed its disclosure statement and Chapter 11 plan. Multiple parties, including Creditor the U.S. Department of Health and Human Services and Centers for Medicare and Medicaid Services ("CMS"), Creditor Simione Healthcare Consultants, LLC ("SHC"), Creditor the H. N. and Frances C. Berger Foundation, the Unsecured Creditors Committee and the UST filed objections to the disclosure statement. After the Court approved a sale of substantially all of Debtor’s assets, on August 7, 2020, Debtor filed its first amended disclosure statement ("Amended Disclosure Statement") and liquidating Chapter 11 plan ("Amended Plan"). Up to date, there is no objections filed to the Court. Three creditors, including the CMS, the IRS, and the SHC raised potential objections to the Debtor. Through stipulations, Debtor has resolved their objections.
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On August 5, 2020, Debtor terminated all remaining employees. Debtor still requires the services of health care employees during the transfer of Debtor’s patients to the buyers. On August 11, 2020, Debtor filed a motion seeking approval of the leasing of employees to Debtor per the transition agreement with Destiny Hospice of the Desert and Destiny Hospice of Temecula, and Healthsure Management Services, LLC. [See Docket #691]. On August 26, Debtor filed another motion seeking a similar relief per a transition agreement with American Healthcare Capital.
PLAN SUMMARY
In addition to the Amended Disclosure Statement, the following exhibits are included:
(1) "Liquidating Trust: Post-Transaction Window Budget" (Exhibit 1); (2) "Trust Agreement" (Exhibit 2); and (3) "Hypothetical Ch 7 Liquidation Analysis" (Exhibit 3).
The Court’s Order to Hold Distribution of Sale Proceeds
Several creditors including Berger Foundation, the SHC, the EDD and the IRS hold competing liens against the proceeds of the sale.
Also, the State of California is investigating donations made to Debtor to determine if any cash on hand or previously used by Debtor is restricted for a designated purpose.
The Court ordered Debtor to hold the proceeds until the lien priority dispute is resolved and the investigation is completed and resolved.
The Effective Date:
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The effective date of the Amended Plan (the "Effective Date") will be the first business day that is at least 15 days after the entry of an order confirming the Amended Plan provided that there has been no order staying the effectiveness of the confirmation order.
The Effective Date will be delayed if Debtor cannot resolve the lien priority disputes and/or the investigation is not completed before the Effective Date.
The Liquidating Trust
On the Effective Date, Debtor shall create and enter into a liquidating trust (the "Liquidating Trust"). After the Liquidating Trust has taken ownership/assignment of all funds, property, claims, rights and causes of action of the Debtor and its Estate, the Debtor shall dissolve or otherwise wind down.
The assets that will be transferred to the Liquidating Trust include (i) any avoidance causes of action belonging to the Debtor’s Estate under any sections 544-553, inclusive, of the Bankruptcy Code (estimated recovery of $666,667); (ii) any D&O and/or E&O actions (estimated recovery
$3,333,333); (iii) any workers compensation self-insurance claims (estimated recovery $1,600,000); (iv) any accounts receivable (estimated at
$5,000,000 ($3,000,000 post-petition and $2,000,000 pre-petition)); (v) cash on hand ($252,907); and (vi) the Sale Proceeds ($7,200,000 less certain banking fees).
Adam Meislik (the "Liquidating Trustee") will be the trustee of the Liquidating Trust. The Liquidating Trustee will receive compensation of
$450 per hour plus expenses.
The Liquidating Trust shall terminate on the later of (a) the date which is 5 years after the Effective Date, and (b) the date of full resolution of all trust property.
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There are two types of unclassified claims and four classes of claims:
Unclassified Claims
Administrative Claims
Attorney fees and accountant fees are estimated in the amount of $1,186,219 as of the Effective Date and they will be paid monthly over 6 months.
The UST fees ($15,453) will be paid in full on or before the Effective Date
Priority Tax Claims: Debtor lists the IRS ($1,576,335) and the FTB ($198,305). Debtor has projected funds sufficient to pay the claim in full in 2021 from the collection of past due A/R and potential recoveries from the D&O Litigation and avoidance actions.
Classified Claims
Class 1-Secured Claim of the IRS ($2,612,694): It will be paid
$1,467,156 in October 2020, and the balance will be paid over 4 months.
Per a stipulation [Docket #705], the Amended Disclosure Statement shall reflect the terms set forth in the stipulation. The IRS reserves its right to object to confirmation of the Plan.
Class 2- Secured Claim of Berger ($4,364,859): It will be paid in
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full on or before the Effective Date.
Class 3- Secured Claim of EDD ($820,841.74): It will be paid 50% in November 2020, and the balance will be paid over 6 months.
Class 4- Simione/the SHC ($2,416,3642): This claim is disputed. Debtor will reserve sufficient funds in a segregated account to pay the full amount. Upon further order of the Court determining the extent of its lien, the claim will be paid.
Per a stipulation [Docket #711] entered by Debtor and Simione/the SHC, a settlement agreement has been reached to resolve the dispute regarding the validity of its lien.
Pending approval of the settlement, Simione/the SHC reserves its right to object to the plan treatment of its claim.
Per the stipulation, the alleged settlement agreement was set for September 29, 2020 at 2:00 p.m. However, this settlement agreement cannot be found in the case docket.
Class 5- Travelers ($2,196,695): This claim is disputed. Travelers may owe Debtor approximately $1.5 million to $2 million. The parties have reached a tentative agreement [see Docket #701]. Once the agreement is approved, Travelers will withdraw its claim.
Class 6- Centers for Medicare and Medicaid ($900,000): It will be fully paid prior to the Effective Date.
Per a stipulation [Docket #703], the plan treatment of this claim stated in this Amended Disclosure Statement were erroneous and should be superseded and replaced by the terms set forth in the stipulation [Docket #657] approved by the Court on July 16, 2020.
Class 7- Cisco ($472): It will be paid in full on the Effective Date.
Class 8- Element Financial (approx. $70,000): Its lien will remain on the collateral, which is not being administered by the Debtor. Any deficiency claim will be treated as a general unsecured claim.
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Class 9- Navitas ($41,272): Its lien will remain on the collateral, which is not being administered by the Debtor. Any deficiency claim will be treated as a general unsecured claim.
Class 10- Midland State Bank: Its lien will remain on the collateral, which is not being administered by the Debtor. Any deficiency claim will be treated as a general unsecured claim.
Class 11- Konica Minolta: Its lien will remain on the collateral, which is not being administered by the Debtor. Any deficiency claim will be treated as a general unsecured claim.
Class 12- Playmaker CRM ($12,992): It will be paid in full in 2021 through the collection of A/R and recoveries from litigation.
Class 13- Priority Claims (approx. $296,567.62): It will be paid in full in 2021 through the collection of A/R and recoveries from litigation, to the extent that there is trust property available.
Class 14- General Unsecured Claims (approx. $12.7 million): Debtor projects that there may be approximately $520,000.00 available to pay General Unsecured Claims.
Rejection of Executory Contracts and Unexpired Leases
On the Effective Date, all executory contracts and unexpired leases of Debtor will be deemed rejected as of the Effective Date, other than executory contracts and unexpired leases that were previously assumed, assumed and assigned, or rejected by final order of the Bankruptcy Court.
If the rejection gives rise to a claim, a proof of claim should be filed and served on Debtor or the Liquidating Trust within 30 days after the Effective Date.
Insurance Policies:
Any insurance policy that is deemed to be an executory contract shall neither be rejected nor assumed by operation of this Plan and
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shall be the subject of a specific motion by the Liquidating Trust, which shall retain the right to assume or reject any such executory contracts following the Effective Date.
Debtor’s rights with respect to all insurance policies shall be
transferred to the Liquidating Trust from the Effective Date until the Debtor’s dissolution.
The confirmation order shall constitute a determination that no default by Debtor exists with respect to any of the insurance policies.
LEGAL ANALYSIS
A Chapter 11 disclosure statement is required to contain "adequate information" pursuant to 11 U.S.C. § 1125(b). 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); In re Metrocraft Publ’g Servs.,
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Inc., 39 B.R. 567 (Bankr. N.D. Ga. 1984) (both 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). ).
Here, there is no objection to Debtor’s Amended Disclosure Statement. Debtor’s Amended Disclosure Statement provides the following information: (1) a financial projection; (2) a feasibility analysis of the plan to demonstrate that the plan will be feasible; (3) a liquidation analysis to prove that the plan meets the best interest test;
the major events during the case; (5) a detailed description of the treatment of the claims; (6) a detailed illustration of the Liquidating Trust; (7) an analysis of the risk factors; (8) the requirements and effect of the confirmation of the plan; and (9) the tax consequences of the plan.
The Court notes some ambiguity with the plan treatment of the SHC. Per the stipulation entered by Debtor and the SHC, a settlement agreement has been reached to resolve the dispute on the validity of the SHC lien, and a hearing on a motion seeking the Court approval of the settlement agreement was set for September 29, 2020. Further, the stipulation states that if the settlement agreement is approved by the Court, the terms providing for the treatment of its claim set forth in the settlement agreement would supersede those set forth in the Amended Plan. The motion mentioned in the stipulation, however, cannot be found in the Court’s case docket.
Further, Debtor’s Post-Transaction Window Budget (Ex. 1) is based on the payment terms set forth in the Amended Plan. Given that Debtor’s stipulations with the CMS and the SHC have changed the plan treatment of their claims, it appears that the financial projections should be updated accordingly.
Debtor filed a motion under FRBP 9019 regarding the secured claim of Berger Foundation. This motion seeks to settle the attorneys’ fees portion of the claim in the amount of $212,750. If the motion is approved by the Court, it seems that this settlement will reduce the amount of the claim (i.e. $4,364,859) currently set forth in Class 2 of the Amended Plan.
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The Amended Disclosure Statement and the Amended Plan re-categorized the creditors’ claims into 14 classes. In the summary of the plan treatments for the claims and some other sections, the claims are referred to as a class of "1-8" which is the claim categorization in the prior plan. To avoid any confusion, Debtor should make changes accordingly.
Other than the issues discussed above, the information provided by Debtor in the Amended Disclosure Statement is generally sufficient.
Tentative Ruling
The Court is inclined to GRANT the motion, APPROVING Debtor's Amended Disclosure Statement as including adequate information, conditioning that Debtor makes clarification on the issues mentioned above.
APPEARANCES REQUIRED.
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich
2:00 PM
Beth Gaschen Beth Gaschen Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 8/28/18, 9/25/18, 10/30/18, 11/13/18, 12/18/18, 2/26/19, 3/27/19, 5/1/19, 7/30/19, 9/17/19, 11/19/19, 2/4/20, 4/21/20
Also #16 EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
10:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Maria Luisa Esguerra Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Amber Yvette Rosales Represented By Benjamin R Heston
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Ramon Nava Guzman Represented By Marlin Branstetter
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Jose Luis Raygoza Pro Se
Joint Debtor(s):
Vera Helen Raygoza Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Lauren Marie Garcia Cordova Represented By Daniel King
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Jacquiece A. Parker Represented By
James D. Hornbuckle
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 36
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: $ 2,050.00 Trustee Expenses: $
Accountant Fees: $ 2,267.00 Accountant Costs: $ 65.60
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):
Robert M. Munoz Represented By Sundee M Teeple
Joint Debtor(s):
Julie Anna Munoz Represented By Sundee M Teeple
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 51
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: $ 2,974.21 Trustee Expenses: $ 430.40
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):
German Duran Lopez Represented By Gerald L Bohart
Joint Debtor(s):
Bertha Alicia Lopez Represented By Gerald L Bohart
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
From: 4/1/20, 5/13/20 EH
Docket 464
The Court will CONTINUE the matter to September 9, 2020 at 11:00 a.m. for the issuance of a written judicial opinion.
APPEARANCES WAIVED.
Debtor(s):
Abel Solorzano Represented By Byron Z Moldo Howard Camhi
Joint Debtor(s):
Irma Solorzano Represented By Byron Z Moldo Howard Camhi
Trustee(s):
Howard B Grobstein (TR) Represented By Ivan L Kallick
2:00 PM
Adv#: 6:19-01163 O'Neil et al v. Perez et al
From: 1/29/20, 5/27/20, 7/22/20, 8/26/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
Plaintiff(s):
Al Karlson Represented By
Edmond Richard McGuire
2:00 PM
Dixie Karlson Represented By
Edmond Richard McGuire
Michael O'Neil Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01057 Pringle v. Makar
To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
Alias issued 7/7/20
From: 7/27/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ayad Makar Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Defendant(s):
Kenneth Hammond Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
HOLDING DATE
From: 11/13/19, 12/18/19, 5/20/20 Also #14
EH
Docket 40
On October 16, 2017, Christy Hammond ("Debtor") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 5918 Ridgegate Dr., Chino Hills, CA 91709 (the "Property"). On January 29, 2018, Debtor obtained a discharge.
On April 23, 2018, the Chapter 7 Trustee filed a notice of assets, subsequently employing an attorney, and a real estate broker. Debtor opposed Trustee’s request to hold a real estate broker, and the Court approved the application after a hearing held on March 27, 2019.
On October 16, 2019, Trustee filed (1) a motion for turnover of property (the "Motion"); and (2) an adversary complaint against Kenneth Hammond seeking
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turnover of property from Debtor’s non-filing spouse. The Motion requests that the Court order the occupants to vacate the Property within twenty days, while outlining certain permitted actions in the event that the occupants do not timely vacate the Property.
On October 30, 2019, Debtor filed her opposition to the Motion. Debtor’s primary argument is that administration of the Property will not produce a consequential benefit to the estate. According to Trustee, the value of the Property is
$600,000-$615,000, the Property is encumbered by security interests totaling
$402,000, Debtor claimed a homestead exemption in the amount of $100,000, and costs of sale/repairs would total $63,000. These figures would produce nonexempt equity in the range of $35,000 to $50,000. In Debtor’s opposition she asserts that Trustee understates the needed repairs by $52,960. Debtor also contends that Trustee overstates the fair market value of the Property by $50,000-$65,000. Finally, Debtor has increased her homestead exemption from $100,000 to $175,000 pursuant to an amended Schedule C filed October 30, 2019 [Dkt. No. 44]. Debtor also raises various procedural and equitable arguments in her opposition.
On November 6, 2019, Trustee filed a reply. Of particular note is that Trustee states that it will file an objection to Debtor’s amended homestead exemption.
11 U.S.C. § 542(a) states:
Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
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The standard for a turnover action is well established:
"To prevail in a turnover action under § 542, the party seeking turnover must establish (1) that the property is or was in the possession, custody or control of an entity during the pendency of the case, (2) that the property may be used by the trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate."
In re Bailey, 380 B.R. 486, 490 (B.A.P. 6th Cir. 2008); see also In re Newman, 487
B.R. 193 (B.A.P. 9th Cir. 2013). Here, the parties dispute the third prong of the turnover standard identified above.
The Court need not address the parties’ dispute regarding the fair market value of the Property because Debtor’s amended Schedule C, filed October 30, 2019, increased Debtor’s homestead exemption by $75,000. Because Trustee’s own calculation results in realizable equity in the range of $35,000 to $50,000, Debtor’s increased claimed homestead exemption eliminates all realizable equity in the subject property. Pursuant to FED. R. BANKR. P. Rule 1009(a), Debtor has a right to amend her schedules "as a matter of course" until the case is closed. And, pursuant to FED. R. BANKR. P. Rule 4003(c), the party objecting to a claimed exemption has the burden of proof.
Therefore, in the absence of a formal objection, the Court must assume that Debtor’s amended homestead exemption is valid. If Debtor’s amended homestead exemption is valid, then the Property does not have consequential value to the bankruptcy estate.
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The Court is inclined to CONTINUE the matter for Trustee to file an objection to Debtor’s amended homestead exemption.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
HOLDING DATE
From: 12/18/19, 5/20/20 Also #13
EH
Docket 49
On October 16, 2017, Christy Hammond ("Debtor") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 5918 Ridgegate Dr., Chino Hills, CA 91709 (the "Property"). On January 29, 2018, Debtor obtained a discharge.
On April 23, 2018, the Chapter 7 Trustee filed a notice of assets, subsequently employing an attorney, and a real estate broker. Debtor opposed Trustee’s request to hold a real estate broker, and the Court approved the application after a hearing held on March 27, 2019.
On October 16, 2019, Trustee filed (1) a motion for turnover of property (the "Turnover Motion"); and (2) an adversary complaint against Kenneth Hammond seeking turnover of property from Debtor’s non-filing spouse. On October 30, 2019,
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Debtor filed an opposition to the Turnover Motion, while also increasing her homestead exemption to $175,000.
On November 20, 2019, Trustee filed an objection to Debtor’s claimed homestead exemption. Trustee argues that Debtor has not established that she is entitled to claim the increased homestead exemption set forth in CAL. CODE CIV. P. § 704.730(a)(3)(B). On December 4, 2019, Debtor filed her opposition. Debtor argues that Trustee has the burden of proof in objecting to the claimed homestead exemption, and that Trustee has not met this burden. Alternatively, Debtor argues that she has adequately established her entitlement to the $175,000 homestead exemption. Specifically, Debtor argues that the increased homestead exemption is based on the alleged disability of her non-filing spouse, Kenneth Hammond, who served in the U.S. Navy. On December 11, 2019, Trustee filed a reply and a variety of evidentiary objections.
Burden of Proof
As a preliminary matter, the parties disagree on the burden of proof when a Trustee files an objection to a claimed exemption. FED. R. BANKR. P. Rule 4003(c) states: "In any hearing under this rule, the objecting party has the burden of proving that the exemptions are not properly claimed." Trustee argues that the Supreme Court, however, held in the case of Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15 (2000) that the burden of proof should be determined by reference to state law. In Raleigh, the Supreme Court was considering whether the burden of proof, in the context of a claim objection, is determined by reference to state law. Citing cases dating back to before World War 2, the Supreme Court stated that "we have long held the burden of proof to be a ‘substantive’ aspect of a claim. That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it." Id. at 20-21.
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The Supreme Court also stated:
Congress of course may do what it likes with entitlements in bankruptcy, but there is no sign that Congress meant to alter the burdens of production and persuasion on tax claims. The Code in several places, to be sure, establishes particular burdens of proof. But the Code makes no provision for altering the burden on a tax claim, and its silence says that no change was intended.
Id. at 21-22 (citation omitted). The above excerpt ended with footnote 2, which states:
The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is "prima facie evidence of the validity and amount of the claim," this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance.
Id.
Thus, the Supreme Court made it clear that Congress was permitted to preempt state law burdens in the drafting of the Bankruptcy Code. Specifically, the Supreme Court cited 11 U.S.C. §§ 362(g), 363(o), 364(d)(2), 547(g), and 1129(d) as examples of instances where the Code specifically articulates a burden of proof. While under principles of preemption it is clear that Congress may delineate an applicable burden in the Bankruptcy Code, in the context of an objection to a homestead exemption, it is the Federal Rules of Bankruptcy Procedure, not the Bankruptcy Code itself, which articulates a burden of proof.
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As Trustee points out in its reply brief, 28 U.S.C. § 2072 provides that federal rules of procedure "shall not abridge, enlarge or modify any substantive right." Given that the Supreme Court has determined that a burden of proof is substantive, it would appear that a provision in the Federal Rules of Bankruptcy Procedure could not alter the applicable burden of proof absent a Code provision providing for such alteration.
After 2000, a number of Court have addressed the issue of whether Raleigh dictates that FED. R. BANKR. P. Rule 4003(c) is invalid when a debtor exempts property under state law, and state law identifies its own burden for claiming that exemption. In California, CAL. CODE CIV. P. § 703.580(b) provides that the party claiming the exemption has the burden of proof. Therefore, in California, the applicable state law provision is in conflict with FED. R. BANKR. P. Rule 4003(c).
The first case to contain an extended analysis of this conflict, post-Raleigh, appears to be In re Greenfield, 289 B.R. 146 (Bankr. S.D. Cal. 2003). In re Greenfield noted that "the propriety of Rule 4003(c) in a case such as this has been called into question." Id. at 148. Ultimately, In re Greenfield stated the following:
The court in Raleigh did indeed look to state law in placing the burden. However, Raleigh dealt with a situation – an objection to a proof of claim – for which neither the Bankruptcy Code nor the Bankruptcy Rules provide a burden of proof . . .
Contrarily, in the case of exemptions and objections thereto, the Rules do provide a specific and clear allocation of the burden – Rule 4003(c). Accordingly, the Raleigh case may not apply.
Id. at 149.
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Then, in 2005, a concurring opinion at the Bankruptcy Appellate Panel, which like In re Greenfield did not actually reach a conclusion on the issue, appeared to lean the opposite direction:
There is reason to doubt the validity of the allocation, in Federal Rule of Bankruptcy Procedure 4003(c), of the burden of proof to the party objecting to a claim of exemption, especially an exemption claimed under state law.
At least with respect to state-law exemptions, the better view, after the Supreme Court’s decision in Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 120 S.Ct. 195, 147 L.Ed.2d 13 (2000), may be that, if challenged, the debtor has the burden to establish entitlements to a claim of exemption under state law by the same standard that applies in the courts of that state. If so, then the objecting party does not properly bear the burden of proof.
The post-Raleigh view necessarily calls into question the validity of Rule 4003(c), which expressly allocates the burden of proof on claims of exemption: "the objecting party has the burden of proving that the exemptions are not properly claimed."
The basic problem is that Rule 4003(c) suffers from being a procedural rule that attempts to accomplish a substantive task, it being settled by Raleigh that a burden of proof in bankruptcy is substantive and generally is regarded as an essential element of a claim itself.
In re Davis, 323 B.R. 732, 741 (B.A.P. 9th Cir. 2005) (Judge Klein, concurring opinion).
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The excerpts from In re Greenfield and In re Davis reveal the operative legal question – is FED. R. BANKR. P. Rule 4003(c) invalid as a procedural rule which modifies substantive rights? Judge Klein, ten years after his concurrence in In re Davis, wrote a well-researched opinion in In re Tallerico supplementing his concurrence. Several courts, primarily in California, have agreed with his position. See, e.g., In re Diaz, 547 B.R. 329 (B.A.P. 9th Cir. 2016); In re Williams, 556 B.R. 456 (Bankr. C.D. Cal. 2016); In re Vaughn, 558 B.R. 897 (Bankr. D. Ala. 2016); In re Pashenee, 531 B.R. 834 (Bankr. E.D. Cal. 2015). Other courts have concluded that FED. R. BANKR. P. Rule 4003(c) is still valid despite Raleigh. See, e.g., In re Nicholson, 435 B.R. 622 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds); Matter of Hoffman, 605 B.R. 560 (Bankr. N.D. Ga. 2019); In re Weatherspoon, 605 B.R. 472 (Bankr. S.D. Ohio 2019). Many courts have offered extended analysis of the issue without arriving at a conclusion. See, e.g., In re Aubry, 558 B.R. 333 (Bankr. C.D. Cal. 2016) (Judge Kwan) (expressing skepticism that FRBP 4003(c) is invalid); In re Gilman, 544 B.R. 184 (Bankr. C.D. Cal. 2016) (Judge Kaufman) (stating that caselaw invalidating FRBP 4003(c) was "compelling," but acknowledging that "there is no binding authority that explicitly changes the burden allocation set forth in Carter or FRBP 4003(c)"); In re Thiem, 443 B.R. 832 (Bankr. D. Ariz. 2011) (noting dispute and presuming FRBP 4003(c) still valid for purposes of opinion). Most commonly, courts simply assume that FED. R. BANKR. P. Rule 4003(c) is still valid, possibly unaware of a split in caselaw on the issue. See, e.g., In re Hanson, 903 F.3d 793 (8th Cir. 2018); In re Nuara, 607 B.R. 116 (Bankr. E.D.N.Y. 2019); In re Haworth, 604 B.R 394 (Bankr. D.
Idaho 2019). Every Circuit Court, including the Ninth Circuit, that has addressed the burden of proof when an objection to a claimed exemption is filed, has continued to refer to FED. R. BANKR. P. Rule 4003(c) post-Raleigh. See, e.g., In re Lee, 889 F.3d 639 (9th Cir. 2018) ("Moreover, Rule 4003(c) provides that in any hearing under the rule, ‘the objecting party has the burden of proving that the exemptions are not properly claimed.’"); In re Hanson, 903 F.3d 793 (8th Cir. 2018) ("It is the trustee’s burden to demonstrate that a claimed exemption is improper."); In re Fehmel, 2010 WL 1287618 (5th Cir. 2010); In re Hodes, 402 F.3d 1005 (10th Cir. 2005) ("The objecting party bears the burden of proof on an objection to a claimed exemption.").
Judge Klein, in In re Tallerico, 532 B.R. 774 (Bankr. E.D. Cal. 2015), after an extended historical discussion, concluded that "Rule 4003(c) offends the
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Bankruptcy Rules Enabling Act with respect to state-law exemptions and must give way to the state statute." This conclusion, that FED. R. BANKR. P. Rule 4003(c) constitutes an impermissible modification of substantive rights, carries significant logical appeal given its simplicity and given the plain language of 28 U.S.C. § 2072.
The Court, however, cannot escape certain countervailing considerations. First, in Raleigh, the Supreme Court quickly turned to the Federal Rules of Bankruptcy Procedure to determine whether a burden of proof was articulated. 530 U.S. 15 at 22, n.2 ("The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is ‘prima facie evidence of the validity and amount of the claim,’ this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance."). The Supreme Court, by writing "that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure," acknowledges that Congress may delegate its authority to set the burden of proof. Indeed, delegation of Congressional authority when an "intelligible principle" is articulated has long been a feature of the American government. See, e.g., Mistretta v. U.S., 488 U.S. 361, 372 (1989) ("Applying this ‘intelligble principle’ test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."). As Mistretta makes clear, the Supreme Court rarely interferes with the exercise of delegated legislative authority. Id. at 373 ("[W]e have upheld, again without deviation, Congress’ ability to delegate power under broad standards.").
This observation finds support in a Bankruptcy Appellate Panel decision from 2010:
As the Supreme Court has recognized, bankruptcy exemptions are authorized and regulated by Congress in § 522 of the Bankruptcy Code.
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Although state law may control the ‘nature and extent’ of state law exemptions, subject to the limitations set forth in the Bankruptcy Code, the manner in which such exemptions are to be claimed, set apart, and awarded, is regulated and determined by the federal courts, as a matter of procedure in the court of bankruptcy administration, as to which they are not bound or limited by state decisions or statutes. Because Congress has regulated the allowance of exemptions in bankruptcy, the Code and Rules may alter burdens of proof relating to exemptions, even if those burdens are part of the "substantive" rights under state law. In implementing the provisions of § 522(l), Rule 4003(c) places the burden of proof on the objecting party.
In re Nicholson, 435 B.R. 622, 633 (B.A.P. 9th Cir. 2010) (partially abrogated on other grounds). In support of the above excerpt, In re Nicholson cited the Supreme Court’s statement that "Congress of course may do what it likes with entitlements in bankruptcy," and the Advisory Committee Note to Rule 4003(c) which states that "This rule is derived from § 522(l) of the Code." Id.; see also 9 COLLIER’S ON BANKRUPTCY ¶ 4003.04 (16th ed. 2019) ("[T]he better- reasoned decisions recognize that the rule simply reflects the burden placed on an objector by section 522(l), a federal statute that overrides state law on this issue under the Supremacy Clause.").
While the Court does not conclude that the approach represented by In re Nicholson is the better-reasoned approach, for multiple reasons outlined below, the Court concludes that the presence of a legitimate argument that FED. R. BANKR. P. Rule 4003(c) is still valid forces this Court to continue applying the rule.
First, the Supreme Court drafts the Federal Rules of Bankruptcy Procedure. Raleigh was decided in 2000, so the Supreme Court has had nineteen years, during which time there have been many rule changes, to modify or eliminate FED. R. BANKR. P. Rule 4003(c). It has not done so. Additionally, the Supreme Court, in Raleigh, stated that the burden of proof has long been considered "substantive" --- citing pre-World War 2 cases in support of the proposition. Those cases long predate FED. R. BANKR. P. Rule 4003(c), yet the Supreme Court drafted the rule despite the presence of those cases. Given these
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observations and the ambiguity regarding the continuing validity of FED. R. BANKR. P. Rule 4003(c), this Court would be remiss to invalidate a binding rule of bankruptcy procedure on the basis that the Supreme Court violated its own caselaw. This is especially so when, to this Court’s knowledge, every Court of Appeal that has cited the burden of proof for an objection to a homestead exemption has continued to refer to FED. R. BANKR. P. Rule 4003(c) even after Raleigh.
Rather, this Court agrees with the analysis set forth in In re Weatherspoon, 605
B.R. 472, 482 (Bankr. S.D. Ohio 2019):
Although Raleigh was decided in the context of an objection to a proof of claim and did not involve Bankruptcy Rule 4003(c), some bankruptcy courts have questioned the continued viability of the rule in light of the Supreme Court’s holding in that case. These cases are well- reasoned, and Ohio courts place the burden of proof on the party claiming the exemption. Thus, it could be argued that here the Debtor should shoulder the burden of proving the exemption was properly claimed. But even if decisions such as Tallerico are correctly decided, it is not for this Court to determine that Raleigh overruled Zingale by implication; instead, it must follow Zingale until the Supreme Court or the Sixth Circuit overrules it.
If trial courts disregard binding precedent and binding legal provisions on the basis that they have been implicitly overruled, especially when there are legitimate arguments to the contrary, judicial hierarchy and the entire doctrine of legal precedent would be undermined.
Merits
Here, as stated by Trustee, CAL. CODE CIV. P. § 704.730(a)(3)(B) provides a
$175,000 homestead exemption for "[a] person physically or mentally disabled
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who as a result of that disability is unable to engage in substantial gainful employment." Regarding the preliminary requirement, whether her husband is disabled, Trustee states "Schedules I and J do not give any indication that Mr. Hammond was disabled as of the Petition Date. . . Debtor included unauthenticated documents and inadmissible hearsay testimony that Mr.
Hammond is disabled currently, but no evidence that suggests he was disabled on October 17, 2017." [Dkt. No. 49, pgs. 4-5]. This line of argument is insufficient given that the Court has concluded it should assign Trustee the burden of proof.
Trustee’s primarily focuses on the second requirement – whether Mr. Hammond’s disability renders him unable to engage in substantial gainful employment. Citing In re Gilman, 544 B.R. 184, 199 (Bankr. C.D. Cal. 2016), Trustee argues the following:
The Gilman court disallowed the enhanced disability exemption because even though the debtor had established she was disabled, the court found she earned or had the capcity to earn at least $1,000 per month. Similarly, this Court can assess whether, on the Petition Date, Mr. Hammond had the ability to earn at least $1,170 per month.
Schedule I reflects a gross income of $1,000 per month for Mr. Hammond, but the only evidence in support of this figure is Schedule I. It is very possible that he was or could have been earning at least $170 more per month. Also, there is reference in the hearsay testimony attached to the Turnover Opposition that Mr. Hammond is or was pursuing further education, which would presumably increase his earning capacity.
[Dkt. No. 49, pg. 6]. As pointed out in the opposition, this argument falls short of meeting Trustee’s burden of proof.
Nevertheless, Trustee’s argument raises a legitimate question regarding Debtor’s eligibility to claim the enhanced homestead exemption under CAL. CODE CIV. P. § 704.730(a)(3)(B). Specifically, the Court notes that Mr.
2:00 PM
Hammond’s income is close to the threshold used in In re Gilman to determine substantial gainful activity, and it appears Mr. Hammond may have been enrolled in educational courses that may have caused a temporary reduction in earning potential unrelated to his disability.
The Court is inclined to set an evidentiary hearing to determine whether Mr. Hammond had the capacity to engage in substantial gainful employment as of the petition date.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 9/2/20 Also #16
EH
Docket 382
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
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: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20, 4/22/20,
7/1/20; 9/2/20
Also #15 EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi Charity J Manee
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
Docket 72
On December 8, 2017, Frank Garcia and Susan Garcia ("Debtors") filed a Chapter 13 voluntary petition. On March 6, 2018, Debtors’ Chapter 13 plan was confirmed.
On February 15, 2018, Creditor Merrick Bank ("Creditor") filed a proof of claim for an unsecured claim in the amount of $1,817.74 ("POC #11"). The POC #11 shows that this claim was a credit card debt, and the credit card account was charged off on August 6, 2001. It also indicates that the last transaction date on the account was March 31, 2003.
On August 5, 2020, Debtors filed a motion to disallow this claim ("Motion"). Debtors argue that the claim is unenforceable under California state law because the 4-year statute of limitations have lapsed as of the filing of this bankruptcy case. On August 13, 2020, Creditor withdrew the POC #11.
11:00 AM
Section 502 of Bankruptcy Code and Section 3007-1 of Local Bankruptcy Rules govern an objection to claim. Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). 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).
Section 502(b) provides that if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim 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 claims is contingent or unmatured. 11 U.S.C. § 502(b)(1). 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. Lundell, 223 F.3d at 1039.
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
11:00 AM
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.
On August 13, 2020, Creditor withdrew the POC #11. The preliminary question here is whether Creditor’s withdrawal of its claim makes Debtors’ Motion moot. FRBP 3006 provides that if an objection is filed to its claim, a creditor may not withdraw the claim except on order of the court after a hearing. Here, Creditor’s withdrawal was filed after Debtors filed their objection to this claim. Pursuant to FRBP 3006 Creditor cannot withdraw its claim without the Court’s approval.
With regard to the merits of the Motion, the Court examines whether Creditor’s claim could be disallowed to the extent that it is unenforceable under the applicable law per section 502(b)(1) of Bankruptcy Code. California Civil Procedures Code section 337 imposes a 4-year statute of limitations on claims arising under a written instrument.
See Cal. Civ. Proc. Code § 337 (West), see also Darling Int'l, Inc. v. Baywood Partners, Inc., No. C-05-3758 EMC, 2005 WL 8162725, at *10 (N.D. Cal. Dec. 21,
2005). Here, Creditor’s claim arising from credit card transactions is governed by section 337. The last transaction date on the credit card account was March 31, 2003. It is more than 4 years (approximately 14 years) before Debtors filed the bankruptcy petition on December 8, 2017. Thus, Creditor’s claim is unenforceable under California state law, and thusly, should be disallowed in its entirety under section 502(b)(1).
Because Creditor is barred from enforcing this claim under California Civil Procedures Code section 337, 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.
11:00 AM
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
11:00 AM
EH
Docket 77
On December 8, 2017, Frank Garcia and Susan Garcia ("Debtors") filed a Chapter 13 voluntary petition. On March 6, 2018, Debtors’ Chapter 13 plan was confirmed.
On February 15, 2018, Creditor LVNV Funding, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $ 2,842.21 ("POC #12"). The POC #12 shows that this claim was a credit card debt, and the credit card account was charged off on May 25, 2005. It also indicates that the last transaction date on the account was September 6, 2004.
On August 5, 2020, Debtors filed a motion to disallow this claim ("Motion"). Debtors argue that the claim is unenforceable under California state law because the 4-year statute of limitations have lapsed as of the filing of this bankruptcy case. On August 13, 2020, Creditor withdrew the POC #12.
11:00 AM
Section 502 of Bankruptcy Code and Section 3007-1 of Local Bankruptcy Rules govern an objection to claim. Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). 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).
Section 502(b) provides that if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim 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 claims is contingent or unmatured. 11 U.S.C. § 502(b)(1). 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. Lundell, 223 F.3d at 1039.
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
11:00 AM
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.
On August 13, 2020, Creditor withdrew the POC #12. The preliminary question here is whether Creditor’s withdrawal of its claim makes Debtors’ Motion moot. FRBP 3006 provides that if an objection is filed to its claim, a creditor may not withdraw the claim except on order of the court after a hearing. Here, Creditor’s withdrawal was filed after Debtors filed their objection to this claim. Pursuant to FRBP 3006 Creditor cannot withdraw its claim without the Court’s approval.
With regard to the merits of the Motion, the Court examines whether Creditor’s claim could be disallowed to the extent that it is unenforceable under the applicable law per section 502(b)(1) of Bankruptcy Code. California Civil Procedures Code section 337 imposes a 4-year statute of limitations on claims arising under a written instrument.
See Cal. Civ. Proc. Code § 337 (West), see also Darling Int'l, Inc. v. Baywood Partners, Inc., No. C-05-3758 EMC, 2005 WL 8162725, at *10 (N.D. Cal. Dec. 21,
2005). Here, Creditor’s claim arising from credit card transactions is governed by section 337. The last transaction date on the credit card account was September 6, 2004. It is more than 4 years (approximately 13 years) before Debtors filed the bankruptcy petition on December 8, 2017. Thus, Creditor’s claim is unenforceable under California state law, and thusly, should be disallowed in this entirety under section 502(b)(1).
Because Creditor is barred from enforcing this claim under California Civil Procedures Code section 337, 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.
11:00 AM
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
11:00 AM
EH
Docket 78
On December 8, 2017, Frank Garcia and Susan Garcia ("Debtors") filed a Chapter 13 voluntary petition. On March 6, 2018, Debtors’ Chapter 13 plan was confirmed.
On February 15, 2018, Creditor Pinnacle Credit Services, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $ 11,839.40 ("POC #13"). The POC #13 shows that this claim was a credit card debt, and the credit card account was charged off on April 1, 2005. It also indicates that the last transaction date on the account was August 30, 2004.
On August 5, 2020, Debtors filed a motion to disallow this claim ("Motion"). Debtors argue that the claim is unenforceable under California state law because the 4-year statute of limitations have lapsed as of the filing of this bankruptcy case. On August 13, 2020, Creditor withdrew the POC #13.
11:00 AM
Section 502 of Bankruptcy Code and Section 3007-1 of Local Bankruptcy Rules govern an objection to claim. Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). 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).
Section 502(b) provides that if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim 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 claims is contingent or unmatured. 11 U.S.C. § 502(b)(1). 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. Lundell, 223 F.3d at 1039.
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
11:00 AM
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.
On August 13, 2020, Creditor withdrew the POC #13. The preliminary question here is whether Creditor’s withdrawal of its claim makes Debtors’ Motion moot. FRBP 3006 provides that if an objection is filed to its claim, a creditor may not withdraw the claim except on order of the court after a hearing. Here, Creditor’s withdrawal was filed after Debtors filed their objection to this claim. Pursuant to FRBP 3006 Creditor cannot withdraw its claim without the Court’s approval.
With regard to the merits of the Motion, the Court examines whether Creditor’s claim could be disallowed to the extent that it is unenforceable under the applicable law per section 502(b)(1) of Bankruptcy Code. California Civil Procedures Code section 337 imposes a 4-year statute of limitations on claims arising under a written instrument.
See Cal. Civ. Proc. Code § 337 (West), see also Darling Int'l, Inc. v. Baywood Partners, Inc., No. C-05-3758 EMC, 2005 WL 8162725, at *10 (N.D. Cal. Dec. 21,
2005). Here, Creditor’s claim arising from credit card transactions is governed by section 337. The last transaction date on the credit card account was August 30, 2004. It is more than 4 years (approximately 13 years) before Debtors filed the bankruptcy petition on December 8, 2017. Thus, Creditor’s claim is unenforceable under California state law, and thusly, should be disallowed in its entirety under section 502(b)(1).
Because Creditor is barred from enforcing this claim under California Civil Procedures Code section 337, 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.
11:00 AM
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
11:00 AM
EH
Docket 36
- NONE LISTED -
Debtor(s):
Miguel Perez Represented By
Peter L Nisson - SUSPENDED BK -
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 54
- NONE LISTED -
Debtor(s):
Maria Toscano Lawes Represented By William J Smyth
Movant(s):
Maria Toscano Lawes Represented By William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Michiko Turner Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cynthia Miller Represented By Richard L Barrett
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelee Elyse Smyth-Tynes Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Shirley Henrietta Harris Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Marie Reese Represented By
Ethan Kiwhan Chin
Joint Debtor(s):
Cara Louise Reese Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Randy Reyes Represented By
J. Luke Hendrix
Joint Debtor(s):
Kate Reyes Represented By
J. Luke Hendrix
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
David A. Julian Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juan Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Monica Irene Allain Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
John Anthony Percell Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 60
- NONE LISTED -
Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Rogelio Preciado Represented By James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Michelle R. Rayner Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 56
- NONE LISTED -
Debtor(s):
Chris Dennis Represented By
Christopher Hewitt
Joint Debtor(s):
Ami Dennis Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 35
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20
EH
Docket 1
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
9:30 AM
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20
EH
Docket 1
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
9:30 AM
9:30 AM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 9/15/20
EH
Docket 1
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
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
9:30 AM
12:00 PM
EH
Docket 55
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Abram Feuerstein esq Cameron C Ridley
12:00 PM
From: 7/28/20, 8/18/20 Also #2
EH
Docket 29
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
11:00 AM
Also #2 EH
Docket 142
- 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
11:00 AM
Also #1 EH
Docket 134
- 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
11:00 AM
Docket 185
On February 14, 2017, Bruce & Ann Ruggles ("Debtors") filed a Chapter 13 voluntary petition. On April 6, 2017, Debtors’ Chapter 13 plan was confirmed, although a second confirmation order was entered on April 18, 2017. The plan was subsequently modified twice.
On July 15, 2020, Trustee filed a motion to dismiss for failure to submit tax returns and turn over tax refunds. On August 11, 2020, Debtors filed a late opposition stating that they submitted their tax returns on August 6, 2020. Regarding Debtors’ tax refunds, the opposition is less than clear, stating: "Debtor received $1375.00 refund from California and forwarded to triustee received by trustee on August 7, 2020. $958 refund from federal taxes. Per correspondence from trustee trustee is willing to stipulate that debtor keep refund and increase Plan payment accordingly. Debtor requests that he keep refunds and increase Plan payment." On August 24, 2020, the Court held a hearing on the motion to dismiss. No appearance was made on behalf of Debtors, and the Court dismissed the case.
On September 1, 2020, Debtor filed a motion to vacate dismissal arguing that the case was dismissed due to the excusable neglect of Debtors’s counsel, John Brady, who miscalendared the hearing date. The Court notes that John Brady missed all four of his
11:00 AM
hearings that were scheduled that day. On September 2, 2020, Trustee filed comments indicating approval of the relief requested, conditioned on Debtors paying $6,460, representing two delinquent plan payments and the remainder of the 2019 tax refunds.
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."
Debtors argue that the case was dismissed due to excusable neglect of their counsel, John Brady. It is well established 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 semi-ordinary. On occasion, the requests are legally sound. Here, however, the evidence provided simply indicates that Debtors’ counsel did not attend the hearing despite receiving, and drafting, numerous pleadings related to the Court’s annual calendar for motions to dismiss for failure to submit tax returns/refunds.
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
11:00 AM
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 conditioned on compliance with the Trustee’s conditions. John Brady to inform the Court whether he intends to seek to vacate dismissal of the other Chapter 13 cases which were dismissed due to his non- appearance at the hearings of August 24, 2020.
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):
Bruce Howard Ruggles Represented By John F Brady
11:00 AM
Ann Marie Ruggles Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 66
On July 8, 2019, Ramon & Clementine Ventura ("Debtors") filed a Chapter 13 voluntary petition. On September 16, 2019, Daimler Trust ("Creditor") filed an objection to confirmation. On October 25, 2019, Debtor’s Chapter 13 plan was confirmed.
On November 4, 2019, Creditor filed a motion for relief from the automatic stay. On December 5, 2019, the Court granted the motion.
On July 17, 2020, Creditor filed a proof of claim for an unsecured claim in the amount of $8,073.36 ("Claim 18"). On July 28, 2020, Debtor filed an objection to Claim 18.
Debtor argues that Claim 18 was filed late because the deadline for filing claims was September 16, 2019.
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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.
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11 U.S.C. § 502(b)(9) provides:
(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 –
(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.
FED. R. BANKRP. P. Rule 3002(c) provides that the deadline for filing claims in a Chapter 13 case is 70 days after the order for relief; in this case that date was September 16, 2019. None of the exceptions in 11 U.S.C. § 502(b)(9) or Rule 3002(c) being applicable to this case, Claim 10 was filed late.
Furthermore, "the 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
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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).
Finally, the Court notes that service was proper and no opposition was filed, 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 18.
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):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Movant(s):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Clementine Ventura Represented By Gregory Ashcraft Gregory Ashcraft Gregory Ashcraft
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 19
Service: Proper Opposition: None
The Court having reviewed the motion, notice appearing proper and no opposition having been filed, and Debtor having submitted adequate evidence establishing that there is no equity for the junior deed of trust to attach to, the Court is inclined to GRANT the motion. Any claim of Fay Servicing is to be treated as an unsecured claim for purposes to the Chapter 13 plan, and the lien of Fay Servicing is to be avoided 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):
Manuel Monroy Represented By
George C Panagiotou
Movant(s):
Manuel Monroy Represented By
George C Panagiotou George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NICHOLAS HEAD
EH
Docket 13
- NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Movant(s):
Nicholas Head Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8 EH
Docket 17
- NONE LISTED -
Debtor(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Movant(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ted Pattison Represented By
Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Cynthia Lou Pate Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sharon Rice Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Sylvia Estrada Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michelle Giralao Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Iliana Beltran-Luna Represented By Chris T Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Gloria Nadine Lee Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Rodney Duane Lee Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Ramon Delgado Jr. Represented By
George C Panagiotou
Joint Debtor(s):
Maribel Delgado Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Eric Pieters Markel Represented By Sara E Razavi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Douglas Allen Dewell Represented By Michael T Reid
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Tanya S. Hernandez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Javier Escareno Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Guillermo Sanchez Paz Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jennifer Lopez Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Leandro Nazareno Jr Represented By Andrew Nguyen
Joint Debtor(s):
Glaisa Nazareno Represented By Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
- NONE LISTED -
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 53
- NONE LISTED -
Debtor(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
From 9/16/20 EH
Docket 55
On May 19, 2020, Dimlux, LLC ("Debtor") filed a Chapter 11 voluntary petition. The Debtor is a real estate holding company acquiring and managing real estate. Currently, the Debtor is not operating and does not produce income. The Debtor’s real estate assets include two parcels of vacant land and a single-family residence located at 4880 Winnetka Ave, Woodland Hills, CA 91364 ("Winnetka Property"). The Debtor’s non- real estate assets include interests in a restaurant and deeds of trust in properties subject to foreclosure proceedings. None of these assets generate income. In addition, the Debtor holds two litigation claims with a potential recovery of $ 292,000.
On July 28, 2020, the UST filed a notice of Debtor’s delinquency and failure to comply with the reporting requirements pursuant to 11 U.S.C. § 1112 and Local Bankruptcy Rule 2015-2. In the notice, the UST pointed out that the Debtor failed to file any monthly operating reports; the Debtor’s counsel had not sought the Court approval of its employment as of July 28, 2020; and the Debtor failed to provide proof that it recorded the bankruptcy petition in San Bernardino, Riverside, and Los Angeles Counties. See Docket #39. The notice further required the Debtor to correct these
12:00 PM
deficiencies by August 10, 2020. Otherwise, the UST would file a motion to convert or dismiss this case. It seems that the Debtor failed to correct the deficiencies by August 10, 2020.
On August 25, 2020, the UST filed a motion to dismiss the case or convert the case to Chapter 7. Up to date, there is no opposition filed.
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.
Dismissal of a chapter 11 case under 11 U.S.C. § 1112(b) requires a two-step analysis. "First, it must be determined that there is ‘cause’ to act. Second, once a determination of ‘cause’ has been made, a choice must be made between conversion and dismissal based on the ‘best interests of the creditors and the estate.’" Nelson v. Meyer (In re Nelson), 343 B.R. 671, 675 (9th Cir. BAP 2006) (quoting Ho v. Dowell (In re Ho), 274 B.R. 867, 877 (9th Cir. BAP 2002)).
Causes Exist to Convert or Dismiss the Case
11 U.S.C. § 1112(b)(4) provides an enumerated list of actions that give cause. The
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relevant enumerated factors are (1) "substantial or continuing loss to or diminution of estate and absence of reasonable likelihood of reorganization"; 11 U.S.C. § 1112(b)(4) (A); and (2) an "unexcused failure to satisfy timely any filing or reporting requirement established by this title or by a rule applicable to a case under this chapter." 11 U.S.C.
§ 1112(b)(4)(F).
Here, the Debtor failed to file monthly operating reports or the delinquent reports to the UST office. It also failed to file accurate schedules. For instance, the schedules did not disclose a revenue sharing agreement signed in 2019, the Debtor’s interests in a restaurant called Mr. Kebab located in Burbank, or its secured debt relating to the vacant land.
Further, the Debtor concedes that it is not presently earning income and unable to pay its secured creditors. Moreover, the Debtor has not provided evidence that it will produce a revenue stream in the near future. The Debtor hopes to reorganize by soliciting financing from insiders and investors and expanding into industrial hemp cultivation. However, the Debtor lacks expertise in this venture and the profit margins are uncertain. Up to date, the financing has not yet materialized, and a creditor obtained stay relief to foreclose on the property related to hemp farming.
In summary, the Debtor has failed to comply with its obligations prescribed in § 1112(b)(4) and has not provided evidence to demonstrate reasonable likelihood of reorganization. Therefore, the Court finds causes exist to convert or dismiss the case.
Converting the Case to Chapter 7 Is in the Best Interests of Creditors
Once a bankruptcy court determines that there is cause to convert or dismiss, it must decide (1) whether dismissal, conversion, or the appointment of a trustee or examiner is in the best interests of creditors and the estate; and (2) whether there are unusual circumstances that establish that dismissal or conversion is not in the best interests of creditors and the estate. See Shulkin Hutton, Inc., P.S. v. Treiger (In re Owens), 552
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F.3d 958, 961 (9th Cir.2009).
The Debtor’s bankruptcy estate holds some assets including the real properties, its interests in a restaurant, and the litigation claims. The UST contends that converting the case to Chapter 7 may allow a Chapter 7 trustee to evaluate the value of these assets and determine whether liquidation of the Debtor’s assets will benefit creditors. Considering that the Debtor failed to demonstrate that any unusual circumstances exist in this case, the Court finds the UST’s argument is persuasive and concludes that converting the case to Chapter 7 is in the best interest of creditors.
Given that the Debtor failed to file required documents (e.g. monthly operating reports) and to provide evidence to demonstrate reasonable likelihood to reorganize, the Court is inclined to GRANT the motion and convert the case to Chapter 7 pursuant to § 1112(b).
APPEARANCES REQUIRED.
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Abram Feuerstein esq Cameron C Ridley
12:00 PM
From: 7/28/20, 8/18/20, 9/16/20 Also #2
EH
Docket 29
- NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
1:00 PM
Adv#: 6:20-01051 Pringle v. Serour
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Aly Serour Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01052 Pringle v. Saber et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Am Saber Pro Se
Yousria Mikhail Guirguis Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01053 Pringle v. Bebawy et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amgad Bebawy Represented By Michael A Corfield
Reham Nakhil Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01054 Pringle v. ANRUF LLC et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
ANRUF LLC Represented By
Andy C Warshaw
Nadia Khalil Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01055 Pringle v. Mena
To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Antonio Mena Represented By
Jeffrey Charles Bogert
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01056 Pringle v. Mettias
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Martin Amin Mettias Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01057 Pringle v. Makar
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
Alias issued 7/7/20
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ayad Makar Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01058 Pringle v. Gendy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Saad Gendy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01059 Pringle v. Bishay
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Boles Bishay Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01060 Pringle v. Portrans
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Diamond Portrans Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01061 Pringle v. Mikhael
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Mikhael Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01062 Pringle v. Makkar
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Louis Makkar Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01063 Pringle v. Ghaly
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ramez Ghaly Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01064 Pringle v. Farah
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mina Farah Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01065 Pringle v. Yassa
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ehap Yassa Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01066 Pringle v. Abdelmessih
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Noshi Abdelmessih Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01067 Pringle v. Eskander
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Emad Eskander Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01068 Pringle v. Gerges
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Rafat Gerges Represented By
Louis J Esbin
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01069 Pringle v. Ghobrial
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fared Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01070 Pringle v. Haroun
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fouad Zikry Haroun Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01071 Pringle v. Youssef
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Mouric Zake Youssef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01072 Pringle v. Goldvilla
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01074 Pringle v. Ghobrial
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ishak Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01075 Pringle v. Rouse
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
James Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc.
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John 20/20 Enterprises, Inc. Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01077 Pringle v. Youssef et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John Maurice Youssef Pro Se
Sally Yo Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01078 Pringle v. Peng
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich,
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01079 Pringle v. Kodsy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Karem Fayez Kodsy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01080 Pringle v. Rouse
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Lana Lee Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01081 Pringle v. Labib et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Labib Represented By
Michael A Corfield
Khair Labib Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01082 Pringle v. Wagdy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Wagdy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01083 Pringle v. Eskarous
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01084 Pringle v. Solomen
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Marcos Solomen Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01085 Pringle v. Khozam
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Margaret Khozam Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01086 Pringle v. Zakhary
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Welliam Aziz Zakhary Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01087 Pringle v. Zumut et al
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ray Zumut Represented By
Lawrence Hoodack
Mary Zumut Represented By
Lawrence Hoodack
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01088 Pringle v. Noshy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Noshy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01089 Pringle v. Barsoom
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Roshdy Wahba Barsoom Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01090 Pringle v. Sawires
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sanad Sawires Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01091 Pringle v. Beshai
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
(STANDSTILL AGREEMENT UNTIL 9/16/20) HOLDING DATE
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sarwat Beshai Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01092 Pringle v. Dawoud
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sohir Gendy Gerges Dawoud Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01093 Pringle v. St. George Medical Office L.L.C.
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
St. George Medical Office L.L.C. Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01094 Pringle v. Wextron Ltd
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Wextron Ltd Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01095 Pringle v. Fannyan
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Zahra Fannyan Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
(Tele. appr. Nancy Clark, rep. Debtor)
(Tele. appr. Robert Zahradka, rep. MennyMac Loan Services)
Docket 63
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jose Guadalupe Sandoval Represented By Michael E Clark Barry E Borowitz
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka Megan E Lees
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/28/20, 9/8/20 EH
(Tele. appr. Sean Ferry, rep. creditor, U.S. Bank)
Docket 63
Service: Proper Opposition: Debtors
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. U.S. Bank National Association (hereinafter "U.S. Bank") claims that post-petition post- confirmation mortgage payments due have not been made by the Debtor. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post- petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
By providing the Equity Line of Credit Agreement and Disclosure Statement, Deed of
11:00 AM
Trust, and the ledger of loan payments, U.S. Bank has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Debtors claim that on July 10, 2020, they made a payment of $1,000. Dkt. No. 65, Pg. 2. Debtor are "looking to enter into an adequate protection order" and they "intend to continue making all of their regular post-petition payments in a timely fashion. Id.
Parties are to abreast the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ricardo Munoz Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Roseann Munoz Represented By Michael E Clark Barry E Borowitz
Movant(s):
U.S. Bank National Association Represented By Mukta Suri Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MEB LOAN TRUST IV, U.S. BANK NATIONAL ASSOCIATION
EH
(Tele. appr. Kirsten M. Martinez, rep. creditor, MEB Loan Trust IV) (Tele. appr. Michael Smith, rep. Debtor)
Docket 95
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley Michael Smith
11:00 AM
Movant(s):
MEB Loan Trust IV, U.S. Bank Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HYUNDAI LEASE TITLING TRUST
EH
(Tele. appr. Sheryl Kim, rep. creditor, Hyundai)
Docket 36
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Victor H Saravia Represented By Julie J Villalobos
Joint Debtor(s):
Deborah A Saravia Represented By
11:00 AM
Movant(s):
Julie J Villalobos
Hyundai Lease Titling Trust Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
EH
(Tele. appr. Sean Ferry, rep. creditor HSB Bank USA)
Docket 53
Parties to apprise the Court of the status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
David John Stoykovich Jr. Represented By Todd L Turoci
Joint Debtor(s):
Merlina Lynn Burton Represented By Todd L Turoci
Movant(s):
HSBC Bank USA, National Represented By
11:00 AM
Trustee(s):
Sean C Ferry Eric P Enciso
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/21/20 EH
(Tele. appr. Sean Ferry, rep. creditor, U.S. Bank)
Docket 82
- NONE LISTED -
Debtor(s):
Jimmie Dale Montezuma Represented By Michael E Clark
Joint Debtor(s):
Jovita Arzate Montezuma Represented By Michael E Clark
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Howard B Grobstein (TR) Represented By David Seror
Jessica L Bagdanov
11:00 AM
11:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 7/21/20, 8/18/20 EH
(Tele. appr. John Brady, rep. Debtor)
(Tele. appr. Sean Ferry, rep. creditor, U.S. Bank)
Docket 82
Service: Proper Opposition: Yes
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Natalie E Lea
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK UNITED NA
From: 8/18/20 EH
Docket 48
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Golda Y Williams Represented By Daniel King
Movant(s):
BANK UNITED N.A. Represented By Julian T Cotton Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 7/28/20, 8/18/20, 9/8/20 EH
Docket 37
- NONE LISTED -
Debtor(s):
Michael Lawrence Ricks Represented By
Richard Komisars III
Joint Debtor(s):
Debra Jean Ricks Represented By
Richard Komisars III
Movant(s):
U. S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S BANK NATIONAL ASSOCIATION
EH
(Tele. appr. Sean Ferry, rep. creditor U.S. Bank)
Docket 52
For the reasons stated in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2);
-DENY request for relief from § 1301(a) co-debtor because the motion was not served on any co-debtor
-GRANT waiver of Rule 4001(a)(3) stay;
-GRANT requests under ¶¶ 2 and 3 as moot;
-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):
Michael Colbus Represented By Andrew Nguyen
11:00 AM
Joint Debtor(s):
Lisa Colbus Represented By
Andrew Nguyen
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
From: 8/18/20 EH
Docket 38
- NONE LISTED -
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Movant(s):
Wilmington Trust National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SELENE AS ATTORNEY IN FACT WILMINGTON SAVINGS FUND SOCIETY, FSB
From: 7/28/20, 9/8/20 EH
(Tele. appr. Sean Ferry, rep. creditor, Wilmington Savings Fund Society) (Tele. appr. Joselina Medrano, rep. Debtors)
Docket 61
Service: Proper Opposition: None
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Selene Finance LP (hereinafter "Selene Finance") claims that post-petition post-confirmation mortgage payments due have not been made by Debtors. "The failure, however, of a debtor to tender post-petition payments to a mortgagee does not mean that the secured creditor must be granted relief from the stay…Evidence of a post-petition delinquency only means that the debtor must then come forward with evidence demonstrating that the mortgagee’s secured interest is adequately protected." In re Middleton Place Assocs., 1993 Bankr. Lexis 2171, *28-*29 (Bankr. E.D. PA, 1993).
11:00 AM
By providing the Fixed/Adjustable Rate Note Interest Only Fixed Period, Deed of Trust, California Assignment of Deed of Trust, Corporation Assignment of Deed of Trust, Modification Agreement, and the ledger of loan payments, Selene Finance has established "cause" for relief under 11 U.S.C § 362(d)(1). In re Kim, 71 B.R. 1011, 1014 (Bankr. C.D. Cal. 1987).
The burden now shifts to the opposing party, the Debtors, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
Debtors have opposed this motion. Dkt. No. 63. Joint Debtor declared that she would like to enter into an adequate protection agreement in which she pays a lump sum on or before the date of the hearing on this matter and pays the remainder over a six- month timeframe in equal installments on the fifteenth of each month. Id. at Decl. in Support of Opposition to Motion for Relief from Automatic Stay.
The parties to update the Court of any adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Ramon H. Ventura Jr. Represented By Gregory Ashcraft
Joint Debtor(s):
Clementine Ventura Represented By Gregory Ashcraft
Movant(s):
Selene as servicer for Wilmington Represented By
11:00 AM
Trustee(s):
Christina J Khil Sean C Ferry
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BAYVIEW LOAN SERVICING , LLC
From: 7/21/20, 8/25/20 EH
(Tele. Bryan Fairman, rep. movant Bayview Loan Servicing, LLC) (Tele. appr. Sundee Teeple, rep. Debtors)
Docket 40
- NONE LISTED -
Debtor(s):
Jonathon Keith Stoner Represented By Sundee M Teeple
Joint Debtor(s):
Jacqueline Belinda Stoner Represented By Sundee M Teeple
Movant(s):
Bayview Loan Servicing, LLC Represented By
Dane W Exnowski Joseph C Delmotte
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: THE MONEY SOURCE INC.
EH
(Tele. appr. Kirsten Martinez, rep. creditor, The Money Source)
Docket 43
For the reasons stated in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT waiver of Rule 4001(a)(3) stay;
-GRANT requests under ¶¶ 2, 3, and 12 as moot;
-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):
Edward A Jandt Represented By Christopher Hewitt
Joint Debtor(s):
Shelley A Jandt Represented By
11:00 AM
Movant(s):
Christopher Hewitt
The Money Source Inc Represented By Mukta Suri Kirsten Martinez Matthew L Tillma
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
Docket 30
- NONE LISTED -
Debtor(s):
Michael Lewis Jackson Represented By Anthony B Vigil
Joint Debtor(s):
Samantha Kim Jackson Represented By Anthony B Vigil
Movant(s):
Exeter Finance, LLC Represented By Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
1HGCV1F1XJA059123 MOVANT: A-L FINANCIAL CORP
EH
Docket 43
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Matthew D. Resnik
Joint Debtor(s):
Kenya Lashawn Britt Represented By Matthew D. Resnik
Movant(s):
A-L Financial Corp. Represented By Lincoln D Gardner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING LLC
From: 9/1/20 EH
Docket 62
- NONE LISTED -
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Movant(s):
Lakeview Loan Servicing, LLC Represented By Daniel K Fujimoto Dane W Exnowski Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SUN WEST MORTGAGE COMPANY, INC.
EH
(Tele. appr. Jaime Cuevas, rep. Debtor)
(Tele. appr. Arnold Graff, rep. movant, Sun West Mortgage Company, Inc.)
Docket 37
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on January 30, 2020, less than one year before the instant case was filed. As Debtor’s motion to continue the
11:00 AM
automatic stay was denied, the automatic stay expired on March 13, 2020. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Movant(s):
Sun West Mortgage Company, Inc. Represented By
Arnold L Graff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BUDGET CAPITAL CORPORATION
From: 8/25/20, 9/8/20 EH
Docket 33
- NONE LISTED -
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Movant(s):
Budget Capital Corporation Represented By Daniel K Fujimoto Alan Steven Wolf Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MOUNTAIN PARK CONDOMINUIM ASSOCIATION
EH
(Tele. appr. Sean Colon, rep. Debtor)
Docket 22
9/29/2020
11 U.S.C. § 727(b) discharges a debtor from personal liability for debts and claims. Accordingly, a discharge does not affect a creditor from pursuing an In rem action. 11
U.S.C. § 362(C)(1) provides that the "stay of an act against property of the estate under subsection(a) of this section continues until such property is no longer property of the estate." Therefore, the automatic stay remains in effect as to actions In rem. § 362(d) requires the Court to grant relief from stay "for cause."
The Court, having reviewed and considered the motion, opposition, and reply, finds cause exists where Debtor has missed fourteen (14) HOA payments and where Movant has requested relief to continue perfection of assessment liens. Accordingly, the Court is inclined to:
-GRANT request under ¶ 2;
11:00 AM
-GRANT other request to record written extension of lien.
APPEARANCES REQUIRED.
Debtor(s):
Rosa H. Colon Represented By Sean H Colon
Movant(s):
Mountain Park Condominium Represented By Erin A Maloney
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20, 6/30/20, 7/28/20, 8/18/20, 9/1/20 EH
(Tele. appr. Michael Perry, rep. Debtor)
(Tele. appr. Martin Phillips, rep. movant Douglas and Cindy Douglas)
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
11:00 AM
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
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However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion. APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: FIRST TECH FEDERAL CREDIT UNION
EH
(Tele. app. Arnold Graff, rep. movant, First Tech Federal Credit Union)
Docket 9
The Court is inclined to:
-GRANT waiver of FRBP 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):
Jaime L. Thomason Represented By Joselina L Medrano
Movant(s):
First Tech Federal Credit Union Represented By
11:00 AM
Trustee(s):
Arnold L Graff
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: FIRST TECH FEDERAL CREDIT UNION
EH
Docket 10
- NONE LISTED -
Debtor(s):
Agnes Szekely Represented By Christopher Hewitt
Movant(s):
First Tech Federal Credit Union Represented By Arnold L Graff
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: FIRST INVESTORS FINANCIAL SERVICES
EH
(Tele. appr. Sheryl Ith, rep. creditor, First investors)
Docket 8
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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(emphasis added).
Here, Debtor’s statement of intention selects an option, known as "ride- through," that is not available in this circuit and as such is not available under the statute. In re Dumont, 581 F.3d 1104 (2009). The Debtor was required to select to either abandon or redeem the property, or to enter a reaffirmation agreement. See 11
U.S.C. § 362(h)(1)(A). As the deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Michael George Amersonis Represented By Neil R Hedtke
Movant(s):
First Investors Financial Services Represented By
Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES, INC
EH
(Tele. appr. Erica Loftis Pacheco, rep. movant, Consumer Portfolio Services)
Docket 10
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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(emphasis added).
Here, Debtor’s statement of intention selects an option, known as "ride- through," that is not available in this circuit and as such is not available under the statute. In re Dumont, 581 F.3d 1104 (2009). The Debtor was required to select to either abandon or redeem the property, or to enter a sreaffirmation agreement. See 11
U.S.C. § 362(h)(1)(A). As the deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Alberto Tejeda Pro Se
Joint Debtor(s):
Lupe C Tejeda Pro Se
Movant(s):
Consumer Portfolio Services, Inc. Represented By
Lemuel Bryant Jaquez
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit Company LLC)
Docket 13
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(2)
-GRANT waiver of FRBP 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):
David J. Dettman Represented By Mark D Klein
11:00 AM
Joint Debtor(s):
Marti J. Dettman Represented By Mark D Klein
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
(Tele. appr. Vincent Frounjian, rep. creditor, American Honda Finance Corporation)
Docket 11
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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(emphasis added).
Here, Debtor’s statement of intention does not address the subject collateral. As the deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2)(A), the automatic stay has terminated as a matter of law.
Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Andrew Ortiz Represented By Paul Y Lee
Joint Debtor(s):
Shivonneroshai A Deseo Represented By Paul Y Lee
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: GATEWAY MORTGAGE GROUP
EH
(Tele. appr. Nancy Lee, rep. creditor, Gateway Mortgage Group) (Tele. appr. Mitt Shen, rep. Debtor in pro se)
Docket 9
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(2)
-GRANT waiver of FRBP 4001(a)(3) stay
-GRANT requests under ¶¶¶ 2, 3, and 12
APPEARANCES REQUIRED.
Debtor(s):
Mitt Shen Pro Se
Movant(s):
Gateway Mortgage Group, a division Represented By
11:00 AM
Trustee(s):
Jennifer C Wong
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: COUNTRY MEADOWS-018, L.P.
EH
Docket 15
9/29/2020
11 U.S.C. § 362(b)(22) provides that:
The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay—
(22) subject to subsection (l), under subsection (a)(3), of the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor;
Here, Movant has obtained a final judgment for possession prior to the filing of the petition. Accordingly, the "continuation of an unlawful detainer action, or similar proceeding by Lessor" is excepted from the automatic stay. See 11 U.S.C.
§ 362(b)(22). Therefore, the Court is inclined to DENY ¶¶ 1, 2, and 5 of request for relief, and GRANT ¶ 6.
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APPEARANCES REQUIRED.
Debtor(s):
Silvio Orellana Represented By Arturo A Burga
Movant(s):
Country Meadows-018, LP Represented By Larissa L Lazarus
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit Company, LLC)
Docket 9
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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(emphasis added).
Here, Debtor’s statement of intention does not address the subject collateral. As the deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2)(A), the automatic stay has terminated as a matter of law.
Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Trifone John Zabatta Represented By Jeffrey N Wishman
Joint Debtor(s):
Mary Rose Eleanor Zabatta Represented By Jeffrey N Wishman
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: PERRY A COVELLO AND TIA LIA COVELLO
EH
(Tele. appr. Gary Saunders, rep. Debtors Perry and Tia Covello)
Docket 10
Debtor had a previous case dismissed on April 2, 2020. Therefore, pursuant to § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date.
11 U.S.C. § 362(c)(3)(C)(i)(II)(aa) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to file the mortgage declaration as required by the Court. The presumption also exists if there is no "substantial change in the financial or personal affairs of the Debtor." 11 U.S.C. § 362(c)(3)(C)(i)(III). Therefore, pursuant to 11 U.S.C. § 362(c) (3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor claims that the plan will be a hundred percent (100%) repayment plan as evidence that the case was filed in good faith. However, it does not appear that there was any substantial change in the affairs of the Debtor, as the Debtor has not submitted any evidence. To properly determine whether Debtor is likely to successfully complete his Chapter 13 plan, the Court requires more evidence and
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further explanation. Pending further submissions, the Court is inclined to:
-DENY continuing the automatic stay. APPEARANCES REQUIRED.
Debtor(s):
Perry A Covello Represented By Gary S Saunders
Joint Debtor(s):
Tia Lia Covello Represented By Gary S Saunders
Movant(s):
Perry A Covello Represented By Gary S Saunders
Tia Lia Covello Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20, 6/9/20, 7/21/20, 8/25/20 EH
(Tele. appr. Ronald Ignatuk, rep. Plaintiff, J. Michael Issa)
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
EH
(Tele. appr. Anthony Friedmanl, rep. Interest party, The H.N. and Frances C. Bergere Foundation)
(Tele. appr. David Goodrich, rep. Debtor, Visting Nurse Association) (Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. Jolene, Tanner, rep. United States of America)
Docket 724
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Adv#: 6:20-01129 Visiting Nurse Association of the Inland Counties v. Del Gado et al
EH
(Tele. appr. Anthony Friedmanl, rep. Interest party, The H.N. and Frances C. Bergere Foundation)
(Tele. appr. David Goodrich, rep. Debtor, Visting Nurse Association) (Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. Jolene, Tanner, rep. United States of America)
Docket 1
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Defendant(s):
Greg Del Gado Pro Se
Bruce Gordon Pro Se
Stuart Furman Pro Se
Lois Beckman Pro Se
Gema Ptasinsky Pro Se
Mary Anne Benzakein Pro Se
Mike Rusnack Pro Se
Maria Lozano Pro Se
Karen Emery Pro Se
Jean Kryger Pro Se
Oscar Brambila Pro Se
DOES 1 to 100, inclusive Pro Se
Plaintiff(s):
Visiting Nurse Association of the Represented By
Jason B Komorsky
2:00 PM
EH
(Tele. appr. Anthony Friedmanl, rep. Interest party, The H.N. and Frances C. Bergere Foundation)
(Tele. appr. David Goodrich, rep. Debtor, Visting Nurse Association) (Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. Jolene, Tanner, rep. United States of America)
Docket 720
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
From: 5/21/19, 7/30/19, 10/29/19, 1/28/20, 2/25/20, 3/31/20, 5/12/20
EH
Docket 2
- NONE LISTED -
Debtor(s):
Woodcrest Ace Hardware Inc. Represented By
Robert B Rosenstein
2:00 PM
(2) Requiring Status Report EH
ALSO #38-39
(Tele. appr. Caroline Djang, rep. trustee, Caroline Djang) (Tele. appr. Everette Green, rep. United States Trustee)
(Tele. appr. Steve Hamilton, rep. Weintraub & Selth) - LISTEN ONLY (Tele. appr. Crystle Lindsey, rep. Debtor, Fasttrak Foods, LLC)
Docket 8
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
2:00 PM
ALSO #37, #39
(Tele. appr. Caroline Djang, rep. trustee, Caroline Djang) (Tele. appr. Everette Green, rep. United States Trustee)
(Tele. appr. Steve Hamilton, rep. Weintraub & Selth) - LISTEN ONLY (Tele. appr. Crystle Lindsey, rep. Debtor, Fasttrak Foods, LLC)
Docket 34
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
MOVANT: Pegasus Peak LLC EH
ALSO #37-38
(Tele. appr. Caroline Djang, rep. trustee, Caroline Djang) (Tele. appr. Everette Green, rep. United States Trustee)
(Tele. appr. Steve Hamilton, rep. Weintraub & Selth) - LISTEN ONLY (Tele. appr. Crystle Lindsey, rep. Debtor, Fasttrak Foods, LLC)
Docket 40
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
Movant(s):
Pegasus Peak LLC Represented By
Paula B Hernandez
2:00 PM
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
(2) Requiring Status Report EH
(Tele. appr. Arturo Cisneros, rep. trustee, A. Cisneros) (Tele. appr. Everett Green, rep. United States Trustee)
Docket 3
- NONE LISTED -
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
11:00 AM
Docket 229
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: $ 5,402.57 Trustee Expenses: $ 0.00
Attorney Fees: $ 21,048.84 Attorney Costs: $ 1,584.69
Accountant Fees: $ 4,895.00 Attorney Fees: $ 50.70
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):
Richard C Cox Jr Represented By Summer M Shaw
11:00 AM
Trustee(s):
Helen R. Frazer (TR) Represented By Leonard M Shulman Brandon J Iskander Lynda T Bui
11:00 AM
EH
Docket 31
On December 5, 2014, Earlene Aubrey ("Debtor") filed a Chapter 7 voluntary petition. On March 16, 2015, Debtor received a discharge, and the case was subsequently closed.
On May 27, 2020, UST filed a motion to reopen the case for Trustee to administer a product liability settlement. On May 29, 2020, the case was reopened.
On September 1, 2020, Trustee filed a motion to approve a compromise of an unscheduled product liability claim. The product liability claim relates to a defective pharmaceutical product. Debtor received a settlement offer through her participation in multiple district litigation being conducted in the U.S. District Court, Northern District of Florida. Pursuant to the compromise motion, the gross settlement amount is
$27,012.53. From this settlement amount, $10,805 is to be paid to special counsel, and $2,652.23 is to be paid for case expenses. Both of these figures include an MDL assessment that is to be paid directly by the claims administrator. Pursuant to the
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compromise motion, the bankruptcy estate would receive the remaining $13,555.29.
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 collection; (3) the complexity, expense, inconvenience and delay of litigation; and (4) the interest of creditors with deference to their reasonable expectations. 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.
Regarding the first factor, Trustee asserts that probability of success in the litigation is uncertain. Trustee notes that liability is uncertain due to the nature of the claim and the resources of the defendant.
Regarding the second factor, Trustee asserts that while there may not be any difficulties in collection, the costs of continuing the litigation may exceed any increase in the amount recovered.
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Regarding the third factor, Trustee asserts that this factor weighs in favor of settlement because further prosecution would be complicated and possibly would entail significant motion practice.
Regarding the fourth factor, Trustee asserts that the settlement of the claim enhances the value to the estate because it involves a guaranteed distribution while avoiding the risks of costly litigation.
The Court notes that the motion does not contain any specific evidence that would enable the Court to assess the reasonableness of the settlement offered. The Court concludes, however, that the process by which the settlement was received, combined with the fact that it appears unsecured creditors will be paid in full, weigh in favor of granting the instant motion and approving the compromise.
Additionally, the Court deems the absence of opposition to be consent to the relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion, APPROVING the compromise.
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):
Earlene Larraine Brandon Aubrey Represented By
Daniel King
11:00 AM
Movant(s):
Lynda T. Bui (TR) Represented By
Cory Watson Attorneys
Trustee(s):
Lynda T. Bui (TR) Represented By
Cory Watson Attorneys
11:00 AM
From: 9/2/20 EH
Docket 146
On November 18, 2016 ("Petition Date"), Donald Sutcliffe ("Debtor") filed a Chapter 7 voluntary petition. In Schedule C, Debtor claimed exemptions for (1) household goods and furnishing ($7,000) and (2) Subzero fridge ($2,000). There is not any objection to exemptions filed, and the deadline for filing such an objection has expired on 1/22/2017 pursuant to Federal Rules of Bankruptcy Procedure Rule 4003(b).
From and after the Petition Date (which was almost four years ago), Debtor failed to make a single mortgage payment, property tax payment, or homeowners’ association payment regarding the real property commonly known as 51417 El Dorado Dr., La Quinta, CA ("Property"). On April 22, 2020, the Trustee filed a motion ("Sale Motion") for sale of the Property free and clear of all specified liens, claims, and interests, to David W. McQuade ("Buyer"). On May 5, 2020, Debtor filed a response to the Sale Motion requesting, among other things, that the Court set a move-out date of July 31, 2020. On May 19, 2020, the Court entered an order granting the Sale Motion ("Sale Order"), with Debtor’s proposed move-out date of July 31, 2020.
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Prior to the extended move-out date, Debtor began to neglect maintenance on the Property, and refused to comply with the Trustee’s reasonable requests. On July 10, 2020, the Trustee filed a motion to enforce turnover order and remove Debtor from the Property, as a result of Debtor’s refusal to comply. On July 17, 2020, the Court entered an order directing the Debtor to vacate the property by 9:00 a.m. on July 20, 2020 ("Final Turnover Order"). Paragraph 4 of the Final Turnover Order stated that "Debtor and any/all occupants shall not remove any fixtures or non-exempt personal property."
The Trustee’s broker informed the Trustee that Debtor had removed (a) 48-inch Sub Zero brand refrigerator; (b) two automatic dishwashers; and (c) at least two wine coolers or wine refrigerators (the "Removed Property") from the Property. Upon confirmation that these appliances were removed, the Buyer sought a quote and negotiated with the Trustee for a buyer’s credit to defray the cost of the replacement appliances. Escrow closed on the week of August 3, 2020. In connection with closing, the Buyer received a credit of $12,000.
On August 11, 2020, the Trustee filed this instant motion to approve $12,000 credit to the Buyer in connection with closing of escrow. On August 19, 2020, Debtor filed an opposition. On August 26, 2020, the Trustee filed a reply.
The Court’s Final Turnover Order stated that "Debtor and any/all occupants shall not remove any fixtures or non-exempt personal property." Per this order, two categories of property should not be removed: (1) fixtures and (2) non-exempt personal property. Here, the Court finds that the refrigerator and the two dishwashers are fixtures pursuant to California Civil Code section 660 but needs further evidence regarding the wine coolers to determine whether they should be deemed as fixtures.
Section 660 of California Civil Code defines a "fixture" as follows:
A thing is deemed to be affixed to land when it is attached to it by
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roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.
Cal. Civ. Code § 660. Pursuant to Article 9 of the Uniform Commercial Code, fixtures are defined as goods that have become so related to particular real property that an interest in them arises under real property law. Unif. Commercial Code § 9-102. The California Residential Purchase Agreement at paragraph 8B(1) (C.A.R. Form RPA- CA, Revised 12/15) approved by the California Association of Realtors has a provision stating that "all existing fixtures and fittings that are attached to the property" are included in the sale to the buyer. C.A.R. Form RPA-CA, Revised 12/15. Common examples of what a fixture is in residential property include built-in cabinets, toilets, carpets, lighting, doors, sinks, counters, solar panels, heating units, air conditioning units, fireplaces, and built-in bookcases.
Here, the evidence provided by the Trustee indicates that the refrigerator and the two dishwashers were build-ins. It appears that they were attached to walls and surrounded by cabinets. As to the wine coolers, it is not clear whether they were build-ins or free standing. Thus, further evidence is required for determining whether the wine coolers are fixtures.
The Trustee through the motion and his declaration requests the Court (1) approve the
$12,000 negotiated credit to the Buyer, and (2) issue an order to show cause re: civil contempt against Debtor and instruct him to compensate the Estate for the damages caused by the removal of the fixtures in violation of the Court’s Final Turnover Order.
Credit of $12,000
11:00 AM
Section 363(b)(1) of the Bankrtupcy Code 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 $12,000 negotiated credit to the Buyer is part of the sale transaction and the standard of business justification applies. The declaration of the Trustee contains evidence of the valuation of the Removed Property, indicating $12,000 is a fair value for the Removed Property. See Motion, Ex. 4. Moreover, the $12,000 credit was a result of arm-length negotiations between the Trustee and the Buyer. The Trustee also contends that this $12,000 credit may avoid re-starting the sale process and the risk of further deterioration to the Property.
Debtor in the opposition [Docket # 155] argues that the Removed Property has little value because they are between 10 to 17 years old and unbranded. Especially, the wine cooler did not work at the time of the court order. Meanwhile, he argues that his ex- girlfriend sold the items to cover the expenses of moving out. These statements contradict with each other – the Removed Property with little value could be sold to cover expenses for moving out. Moreover, although Debtor disputes the valuation of the Removed Property, he failed to provide his own evidence of valuation and did not disclose how much proceeds the ex-girlfriend received from the sale of the Removed Property.
Subject to a determination of the wine coolers being fixtures, the Court concludes that the Trustee has articulated an adequate business reason for this transaction, given that the $12,000 credit appears to be a good faith, arms-length transaction, and that this deal will avoid unnecessary administrative expenses.
11:00 AM
Order to Show Cause re: Civil Contempt against Debtor
Along with the motion, the Trustee also submitted a declaration in lieu of a motion for order to show cause re: contempt against Debtor. The Trustee contends that the removal of those appliances is in contempt of the Final Turnover Order and caused at least $12,000 in direct damages to the estate. Moreover, a post-turnover inspection by the Trustee’s broker revealed that Debtor did not move out all of his personal items and left a substantial amount of trash on the Property. All of Debtor’s conducts caused unanticipated pre-closing costs to remedy damage of the Property and substantial attorneys’ fees and costs in this regard.
It is uncontroverted that Debtor was aware of the Court’s Final Turnover Order. In the opposition, Debtor failed to provide any justification to explain the removal of these appliances. Thus, the Court is inclined to issue an OSC re civil contempt.
The Court is inclined to CONTINUE for evidence as to the wine coolers being fixtures, and issue an OSC re civil contempt.
APPEARANCES REQUIRED.
Debtor(s):
Donald Sutcliffe Pro Se
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays
11:00 AM
Trustee(s):
David Wood Tinho Mang
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
Docket 33
9/30/2020
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 Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,260.10 Trustee Expenses: $ 20.00
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):
Robert Alan Sitarski Represented By Edgar P Lombera
Joint Debtor(s):
Heidi Ann Sitarski Represented By Edgar P Lombera
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 17
On July 20, 2020, Fury Investments, Inc. ("Debtor") filed a Chapter 7 voluntary petition. The only scheduled asset of the bankruptcy estate that was scheduled as having any value was a California liquor license (the "License"). Schedule B identified the value of the License as $28,500, and identified the License as being in escrow.
On September 1, 2020, Trustee filed a motion for an order: (1) authorizing the sale of California liquor license; (2) approving overbid procedures; and (3) finding that buyer is entitled to § 363(m) protection. Trustee proposes to complete the sale that was already pending when the bankruptcy case was filed, and to sell the License to Bell Family Enterprises, Inc. ("Purchaser") for $28,500 .
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.).
Here, because the sale of the License had already been arranged at the time Debtor filed bankruptcy, it does not appear that any meaningful marketing took place after the bankruptcy was filed, and the motion is largely silent regarding the sale process. The Court does note that Trustee’s declaration states "I have been informed that the going rate for the Liquor License in the Los Angeles County area of the type being marketed by Trustee is approximately $28,500," [Dkt. No. 17, pg. 10, ¶ 8] although the Court does not consider this evidence to be adequate to establish fair market value.
While the Court can conclude that Trustee has articulated a sufficient business reason for the sale (i.e. the asset is unencumbered and unexempt), Trustee has not provided any material evidence tending to establish that that the proposed sale is in the best interests of the estate. To satisfy this requirement, the Court will require either evidence regarding the marketing of the License, or competent evidence establishing the fair market value of the License.
Miscellaneous Provisions
Assuming that Trustee can establish that the proposed sale is in the best interests of
11:00 AM
the estate, the Court has reviewed the remainder of Trustee’s miscellaneous requests and finds those requests proper. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has also reviewed the declaration of Purchaser, and finds the declaration sufficient for a determination that Purchaser is a good faith purchaser pursuant to 11 U.S.C. § 363 (m).
Trustee to provide information regarding the marketing and fair market value of the License.
APPEARANCES REQUIRED.
Debtor(s):
Fury Investments, Inc. fdba Zelda's Represented By
Jenny L Doling
Movant(s):
Howard B Grobstein (TR) Represented By
Ori S Blumenfeld
Trustee(s):
Howard B Grobstein (TR) Represented By
Ori S Blumenfeld
11:00 AM
MOVANT: PERRY A COVELLO AND TIA LIA COVELLO
From: 9/29/20 EH
Docket 10
Debtor had a previous case dismissed on April 2, 2020. Therefore, pursuant to § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date.
11 U.S.C. § 362(c)(3)(C)(i)(II)(aa) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to file the mortgage declaration as required by the Court. The presumption also exists if there is no "substantial change in the financial or personal affairs of the Debtor." 11 U.S.C. § 362(c)(3)(C)(i)(III). Therefore, pursuant to 11 U.S.C. § 362(c) (3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor claims that the plan will be a hundred percent (100%) repayment plan as evidence that the case was filed in good faith. However, it does not appear that there was any substantial change in the affairs of the Debtor, as the Debtor has not submitted any evidence. To properly determine whether Debtor is likely to
11:00 AM
successfully complete his Chapter 13 plan, the Court requires more evidence and further explanation. Pending further submissions, the Court is inclined to:
-DENY continuing the automatic stay. APPEARANCES REQUIRED.
Debtor(s):
Perry A Covello Represented By Gary S Saunders
Joint Debtor(s):
Tia Lia Covello Represented By Gary S Saunders
Movant(s):
Perry A Covello Represented By Gary S Saunders
Tia Lia Covello Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Docket 0
- NONE LISTED -
Debtor(s):
Ana Veronica Cortez Moran Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20
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):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
2:00 PM
MEHRAN DEVELOPMENT Pro Se
Plaintiff(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#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19, 1/29/20, 5/27/20, 7/29/20
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
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):
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#: 6:16-01163 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, 4/25/18, 2/27/18, 6/12/19, 1/29/20, 5/27/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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 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
From: 4/25/18, 6/13/18, 8/22/18, 10/31/18, 7/31/19, 9/11/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20
EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
2:00 PM
Jerry Wang Represented By
Franklin R Fraley Jr Anthony J Napolitano
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19, 1/29/20, 5/27/20, 7/29/20
EH
Docket 333
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
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, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20, 4/8/20, 4/29/20, 7/1/20, 9/2/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Sterling Security Service, Inc. Pro Se
Natalia V Knoch Pro Se
Steven B Knoch Pro Se
Stacy Winn Represented By
Douglas A Plazak
Ralph Winn Represented By
Douglas A Plazak
2:00 PM
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#: 6:16-01279 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, 11/27/18, 2/26/19, 4/10/19, 6/12/19,
8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20, 7/29/20
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, 9/25/18, 11/27/18, 2/26/19,
4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 3/4/20, 4/29/20, 7/29/20
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
2:00 PM
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20,
7/29/20
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,
11/27/18, 2/26/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20,
7/29/20
Also # 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#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
From: 7/10/18, 8/21/18, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20, 7/20/20
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
2:00 PM
Jason Balitzer 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, 10/30/18, 1/15/19, 4/10/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20, 7/29/20
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
2:00 PM
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
From: 7/10/18, 2/27/19, 6/12/19, 8/28/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20, 7/29/20
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 Mark S Horoupian
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: 8/19/20 EH
Docket 114
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
Movant(s):
Donald Sutcliffe Pro Se
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
Also #21-22 EH
Docket 6
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
Defendant(s):
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
UNITED STATES OF AMERICA Represented By
Gavin L Greene
Movant(s):
Internal Revenue Service Represented By Gavin L Greene
2:00 PM
Plaintiff(s):
Donald John Sutcliffe Represented By Michael Jones
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
Also #20, 22 EH
Docket 8
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
Defendant(s):
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
UNITED STATES OF AMERICA Represented By
Gavin L Greene
Movant(s):
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
2:00 PM
Plaintiff(s):
Donald John Sutcliffe Represented By Michael Jones
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01114 Sutcliffe v. Internal Revenue Service et al
From: 8/19/20 Also #20-21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
Defendant(s):
UNITED STATES OF AMERICA Represented By
Gavin L Greene
Internal Revenue Service Represented By Gavin L Greene
Canadian Revenue Agency Pro Se
JOHN PRINGLE Represented By
D Edward Hays Tinho Mang
2:00 PM
Plaintiff(s):
Donald John Sutcliffe Represented By Michael Jones
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
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, 11/14/18, 1/30/19, 2/27/19, 6/12/19, 7/10/19, 1/15/20, 4/22/20
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):
Rafat Gerges Represented By
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Mona Gerges Represented By
Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01126 Pringle v. Botors
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Emad Khalifa Botors Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01127 Pringle v. Awad
EH
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amir Maher Guirgus Awad Represented By Scott Talkov
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc. et al
Docket 18
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amir Maher Guirguis Awad Represented By Scott Talkov
Christopher M Kiernan
John 20/20 Enterprises, Inc. Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Amir Maher Guirguis Awad Represented By Scott Talkov
Christopher M Kiernan
Plaintiff(s):
John P. Pringle Represented By
2:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01127 Pringle v. Awad
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amir Maher Guirgus Awad Represented By Scott Talkov
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Amir Maher Guirgus Awad Represented By Scott Talkov
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
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
(Dismissed as to Mike Bareh 9/4/18) (Dismissed as to Bernadette Shenouda 1/2/19) HOLDING DATE
From: 5/9/18, 6/6/18, 8/22/18, 10/31/18, 2/27/19, 6/12/19, 1/15/20, 3/4/20, 3/18/20, 7/15/20, 7/29/20, 8/26/20
EH
Docket 5
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
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 Douglas L Mahaffey
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Mark Bastorous Represented By Thomas F Nowland Douglas L Mahaffey
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
Chun-Wu Li Represented By
Douglas L Mahaffey
Chienan Chen Represented By Douglas L Mahaffey
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01022 Grobstein v. Aitken
Also #30 EH
Docket 12
On January 23, 2019, Timothy & Esmeralda Aitken ("Debtors") filed a pro se Chapter 7 voluntary petition. On April 19, 2019, Trustee filed a notice of assets. On May 1, 2019, Debtors filed an amended Schedule C claiming as exempt equity in real property located at 6919 Elmwood Rd., San Bernardino, CA (the "Property") transferred in 2017. On February 28, 2020, Trustee filed a motion to extent time to objection to Debtors’ claimed exemption. On April 7, 2020, the Court entered an order extending the deadline to object to Debtors’ claimed exemption until October 3, 2020.
On March 3, 2020, Trustee filed a complaint against Alicia Aitken ("Defendant"), Debtors’ daughter, for avoidance and recovery of fraudulent transfer. On April 14, 2020, default was entered against Defendant. On June 9, 2020, Trustee filed a motion for default judgment.
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Trustee’s complaint relates to the sale of the Property from Debtors to Defendant on August 31, 2017. Trustee notes that the settlement statement for the sale includes a notation for a gift of equity in the amount of $29,310. It appears from the information provided to the Court that the sale involved Defendant taking out a loan in the amount of $195,400 and paying off the existing mortgage on the Property as well as all costs of sale. After payment of those items, it appears that Defendant retained $29,310 of the remaining $32,551.56 in loan proceeds, with the balance going to Debtors. Trustee then sued Defendant to recover the $29,310.
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:
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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, Defendant was served at the Property. While Defendant clearly purchased the Property, the Court notes that Debtors listed the Property as their address on the bankruptcy petition, and also listed a housing expense on Schedule J, so it appears Defendant may have purchased the Property and began renting it out to Debtors.
Trustee to apprise the Court of its attempt to determine a valid service address for Defendant.
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. A general problem with all five causes of action is Trustee’s characterization of the "transfer" to be avoided. Trustee has defined the subject transfer as the gift of equity. In so doing, Trustee has bifurcated the sale at issue into two distinct transactions: (1) a sale of the Property for
$195,400; and (2) a gift from Debtors to Defendant in the amount of $29,310. This
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would appear to be a distortion of the events which actually occurred, specifically that Defendant took out a loan for $195,400 and purchased the Property for $166,090, retaining the remaining loan proceeds.
Therefore, the operative legal question becomes – to what extent can a transfer be subdivided into various components? The Court notes Trustee’s argument implicitly requires the Court to assume that the $195,400 price of the Property constitutes the fair market value of the Property, but the Court does not have any evidence to support that conclusion. Even accepting that assumption, Trustee’s proposed bifurcation of the sale arrangement results in a fundamental change in the statutory language, for it would force this Court to replace "reasonably equivalent value" with "equivalent value." For in any sale in which the purchase price was less than the fair market value of the property, the sale could be construed as a sale of the property for the fair market value and an accompanying gift of equity; in other words, every transfer in which a debtor received less than "equivalent value" would be subject to attack.1
Therefore, in accordance with the reasoning above and the Court’s understanding of the terms of the sale (reproduced in the final paragraph of the background section), the Court is inclined to consider the transfer at issue to have been the sale of the Property for $166,010. Trustee has not provided any legal argument that would support a conclusion that the sale of the Property for $166,010 constitutes a fraudulent transfer.
The Court is inclined to CONTINUE the matter for Trustee to file a supplemental brief responding to the issues raised above.
APPEARANCES REQUIRED.
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Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Howard Grobstein Represented By Larry D Simons
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
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Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20, 6/10/20, 7/1/20, 8/19/20 Also #29
EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
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Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
Also #32 EH
Docket 18
Between May 2015 and May 2017, Nathaniel James Cardiel ("Cardiel") was employed by O’Gara Coach Company, LLC ("OGCC") at its Beverly Hills, California dealership. OGCC is in the business of selling new and used high-end luxury automobiles. Between April 2017 and February 2018, Cardiel stole a 2009 Rolls- Royce Phantom Coupe ("2009 Rolls-Royce"), and a 2016 McLaren 675 LT ("2016 McLaren").
On February 9, 2018, the Beverly Hills Police Department located the two vehicles at Cardiel’s residence. On April 10, 2018, Cardiel was charged criminally in the Los Angeles Superior Court for the theft of the two vehicles. On November 13, 2018, Cardiel entered into a felony plea agreement in Los Angeles Superior Court whereby Cardiel agreed to pay $105,000.00 restitution.
On April 24, 2018, OGCC separately filed a complaint against Cardiel among others in Riverside Superior Court.
On March 1, 2019, OGCC’s state court counsel deposed Cardiel wherein Cardiel admitted that he stole the two cars from OGCC and revealed that he was consulting with some lawyers about bankruptcy. Specifically, from the excerpt of the deposition, in page 58, lines 23-25, in response to the question, "You stole the car?" Cardiel replied, "I did." In page 81, lines 5-12, in response to the questions, "So you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you like. You use bolt cutters that you bought the day before to cut the lock on the gate?
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You open the gate and then you drive the car off the lot", Cardiel replied "Correct." In page 75, lines 15-21, in response to the question, "did you go to the dealership with the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In page 124, lines 14-20, Cardiel revealed, "I had no way of paying my credit card companies…actually right now I’m consulting some lawyers about bankruptcy. So I’m not in a good place credit-wise, as you probably saw by my credit report."
OGCC’s case filed in Riverside Superior Court is now pending.
On March 20, 2019, Cardiel filed a Chapter 7 bankruptcy without counsel. Cardiel failed to fully disclose his prepetition financial status in the schedules. Specifically, Cardiel did not disclose 1) OGCC’s pending litigation against him; 2) the pending Los Angeles Superior Court Criminal Action against him and the corresponding
$105,000.00 restitution and his plea agreement; 3) Cardiel’s ownership interest in the corporate entity, Day Dream Drive; 4) bank accounts maintained at California Coast Credit Union; and 5) 2017 Financial Statement submitted to California Coast Credit Union.
On July 1, 2019, Cardiel received his Chapter 7 discharge and on July 2, 2019 Cardiel’s Chapter 7 bankruptcy case was closed.
On or about August 23, 2019, OGCC allegedly became aware of Cardiel’s Chapter 7 case and moved to reopen the case. On September 17, 2019, Cardiel’s Chapter 7 Bankruptcy Case was reopened.
On October 4, 2019, OGCC filed a complaint to commence adversary proceeding in this Court, alleging that Cardiel’s discharge should be revoked under 11 U.S.C § 727(a) and OGCC’s claim should be determined to be non-dischargeable under 11
U.S.C §523(a)(2) and §523(a)(6). On December 2, 2019, Cardiel filed an answer to the complaint.
On May 14, 2020, OGCC filed a motion for summary judgment, arguing there were no disputed material facts and that Cardiel’s discharge should be revoked under 11 U.S.C §727(d), and that OGCC’s claim should be determined to be non- dischargeable under 11 U.S.C §523(a)(6).
Specifically, for the claim under §727(d), OGCC argues that Cardiel’s omission of contained information noted above from his schedules suffices the requirement under
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§727(d) given that 1) OGCC’s alleged entitlement to over $100,000 restitution is material because it constitutes over 60% of Cardiel’s total claims, and 2) Cardiel’s omission was knowingly made as Cardiel filed the bankruptcy only three weeks after his March deposition along with his recent state court criminal charge.
As to the claim under §523(a)(6), OGCC alleges that Cardiel’s acts were willful and malicious because Cardiel had the motive to inflict injury by stealing and concealing the cars as evidenced by the March deposition, and that caused economic injury totaling $551,295.82.
According to OGCC’s damage calculation formula, with respect to the 2009 Rolls-Royce, the loss of use is $5,000.00; the loss in value re disclose theft to subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (10,992 miles at $2.50 per mile) is $27,480.00; restore vehicle to factory standards is $36,332.46; the subtotal is $103,812.46. As to the 2016 McLaren, the loss in value re having to disclose the theft to a subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (100 miles at $2.50 per mile) is $250; the subtotal is $35,250.00. The whole amount of car damages is then further trebled pursuant to California Penal Code §496. In addition, the attorney fee, which should also be included to the total amount pursuant to §496, would be
$134,108.44.
On June 17, 2020, Cardiel filed an opposition to motion for summary judgment along with his evidentiary objections to the declaration of Juan Hernandez. In the opposition, Cardiel primarily raises disputes regarding damages calculation and amount of the damages in each category. On June 24, OGCC filed a reply to the opposition, arguing that Juan Hernandez, working as a corporate controller at OGCC, is capable to provide reliable amount of damages. In addition, OGCC also filed an evidentiary objection to the declaration of Nathaniel James Cardiel.
As a preliminary matter, the Court evaluates the evidentiary objections submitted by both parties.
First, as to the evidentiary objections by Defendant Cardiel to Juan Hernandez declaration, the Court:
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OVERRULES the evidentiary objection as to ¶ 7 based on hearsay. Defendant
assumes, but it is not clear from the declaration, that amounts are reflected in a business record.
SUSTAINS the evidentiary objection as to ¶ 7 based on lack of foundation.
There is no foundation provided for Declarant’s expertise to assess the damages, or for the damage amounts themselves.
The Court does not address remainder of Cardiel’s evidentiary objections as premature pending resolution of section 496 issues.
OGCC made the evidentiary objections to the declaration of Nathaniel James Cardiel. The Court:
OVERRULES objection based on lack of personal knowledge. Perhaps an appropriate objection would be improper legal argument, or lack of foundation, but Declarant is NOT testifying as to what Plaintiff believed (note, Plaintiff is not a person). Declarant is instead testifying as to what Declarant believes.
OVERRULES objection based on Expert Witness. Declarant is not testifying as an expert as to any alleged fact. An appropriate objection would be improper legal argument.
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. Fed. R. Civ. P. 56(c) (made applicable to adversary proceedings by Fed. R. Bankr. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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. Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved
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against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Section 523(a)(6) provides that: "(a) A discharge under 727 ... of this title does not discharge an individual debtor from any debt - ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity." Whether a particular debt is for willful and malicious injury by the debtor to another or the property of another under § 523(a)(6) requires application of a two-pronged test to the conduct giving rise to the injury. In other words, the creditor must prove that the debtor's conduct in causing the injuries was both willful and malicious. Barboza v.
New Form, Inc. (In re Barboza), 545 F.3d 702,711 (9th Cir. 2008) (citing Carrillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (9th Cir. 2002) and requiring the application of a separate analysis of each prong of "willful" and "malicious").
To show that a debtor's conduct is willful requires proof that the debtor deliberately or
intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Kawaauhau v. Geiger, 523 U.S. 57, 60–61 (1998); Carrillo v. Su (In re Su), 290 F.3d 1140, 1143 (9th Cir. 2002). The debtor must act with a subjective motive to inflict injury, or with a belief that injury is substantially certain to result from the conduct. In re Su, 290 F.3d at 1143. The court may consider circumstantial evidence that may establish what the debtor actually knew when conducting the injury creating action and not just what the debtor admitted to knowing. In re Ormsby, 591 F. 3d at 1206 (9th Cir. 2010). Conversion is not per se
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a willful and malicious injury; it establishes only the wrongful assertion of dominion over another’s personal property. Peklar v. Ikerd (In re Peklar), 260 F.3d 1035, 1037 (9th Cir.2001). See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1206 (9th Cir. 2001) (for liability under § 523(a)(6), plaintiff must prove debtor acted willfully and inflicted injury willfully and maliciously rather than recklessly or negligently.) The court must determine whether Cardiel’s acts meet the willful and malicious requirement under §523(a)(6).
As to the willfulness, OGCC asserts that Cardiel affirmatively admitted no less than five times in his March 2019 deposition testimony (three weeks before his March 20, 2019 Chapter bankruptcy filing) that he most certainly intended to steal the 2009 Rolls-Royce and the 2016 McLaren. Specifically, Cardiel admitted that he intentionally stole the car. In response to the question, "did you go to the dealership with the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In response to the question, "so you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you like. You use bolt cutters that you bought the day before to cut the lock on the gate? You open the gate and then you drive the car off the lot", Cardiel replied "Correct."
Here, it is clear from these quoted parts of deposition that Cardiel intended the acts to steal the vehicles from OGCC. These were not negligent or reckless acts as Cardiel prepared to perform the theft and bought the bolt cutters in advance to achieve his plan. The series of purposeful and deliberate acts for stealing, along with later possession of the car over a period of 6 months to 1 year, resulted in the serious interference with OGCC’s right to possess its cars. Cardiel’s possession of the cars over a period of more than half a year is, at the very least, substantially certain to result in the conversion of OGCC’s cars and more likely intended to inflict that injury. The economic injury to OGCC, including but not limited to, the loss of use and diminished value of vehicle due to mileage incurred by Cardiel, was a direct and certain result by Cardiel’s acts. Despite that Cardiel did not allege that he had a subjective motive to inflict the economic harm to OGCC, Cardiel’s acts to steal the cars for his own entertainment without any indication to return or compensation for OGCC suffice the willingness prong as the economic loss to OGCC was substantially certain resulting from Cardiel’s acts. Moreover, Cardiel’s counsel did not argue against the willfulness in the opposition or produce any evidence to the contrary to
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suggest otherwise.
Based on the foregoing, the Court finds that Cardiel inflicted an economic injury to OGCC upon either acting with a subjective motive to inflict that injury or with a belief that the injury was substantially certain from his theft of two cars and thus the Court determines that willfulness prong is satisfied.
For conducts to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) was done without just cause or excuse. In re Su, 290 F.3d 1140, at 1143. Torts will generally suffice the wrongful act requirement under section 523(a)(6) in the Ninth Circuit. In re Jercich, 238 F.3d 1202, 1204-06 (9th Cir. 2001). The conversion of another's property without his knowledge or consent, done intentionally and without justification and excuse, to the other's injury, constitutes a willful and malicious injury within the meaning of § 523(a)(6). Id, at 1208 (quoting Del Bino v.
Bailey (In re Bailey), 197 F.3d 997, 1000 (9th Cir.1999)).
The evidence establishes that Cardiel’s acts satisfy the malicious prong. As to the first element, the undisputed facts reveal that Cardiel, as a prior employee at OGCC, stole a 2009 Rolls-Royce and a 2016 McLaren from OGCC. Cardiel took advantage of knowledge he accumulated during his prior employment so that he was able to acquire a set of keys to enter the lot where the cars parked. He subsequently stole the cars that were open with a bunch of keys, and then Cardiel used the bolt cutters that he prepared in advance to cut the lock on the gate so he could drive away. Cardiel kept the cars in his residence for more than half of a year and drove the cars for his own entertainment without an intention to return the cars. These acts establish culpabilities as Cardiel was soon charged criminally in the Los Angeles Superior Court for the theft of the vehicles after the cars were located by the Beverly Hills Police Department.
Cardiel afterwards entered into a felony plea agreement in Los Angeles Superior Court. These undisputed facts show that the acts committed by Cardiel are wrongful.
The second element is easily satisfied here as Cardiel intended these acts as he admitted multiple times in his deposition and, as discussed above, OGCC’s injury was substantially certain inflicted by Cardiel’s acts. As to the third element, Cardiel’s theft necessarily caused certain economic injury to OGCC, including but not limited to the loss of use and diminished value of vehicle due to mileage incurred by Cardiel, thus, the third element is satisfied. Lastly, Cardiel did not provide any evidence to
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show that his acts were done with just cause or excuse. Even to the contrary, Cardiel in his deposition admitted that he stole the cars specifically in order to suit his fancy. Therefore, the Court finds OGCC has established the malicious injury requirement under Section 523(a)(6).
Thus, based on the foregoing, the Court determines that OGCC has proven the claim that the debt owed by Cardiel to OGCC for theft of the two vehicles is except from discharge pursuant to 11 U.S.C § 523(a)(6). However, as noted above, there is no admissible evidence in support of exact amount of damages.
Based on the sustained objection to the damage calculations, OGCC has failed to establish the amount of damages for the injury caused by Cardiel’s acts. However, even assuming there was no issue with the damage award, it is unclear from the pleadings as to whether treble damages are appropriate. California Penal Code § 496(a) and (c) provide in relevant part as follows:
(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. …
A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.
…
(c) Any person who has been injured by a violation of subdivision
(a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.
In this case, the record reflects that Defendant Cardiel pled no contest as part of a plea agreement to a charge of §10851 of the Vehicle Code. Section 10851 states in
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part as follows:
Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.
There is at least one issue concerning the applicability of §496(a) to the restitution award in this case. The Court assumes without determining that a no contest plea as part of a plea bargain results in a criminal conviction. However, it is unclear if the plea to §10851(a) is a conviction of theft, as theft requires intent to steal but § 10851(a) does not, and to the extent the plea bargain constitutes a conviction of theft, under §496(a) a person cannot also be convicted also under §496(a). Finally, the Court understands Cardiel has testified as to intent to steal, but it is also unclear how such testimony factors into the analysis.
Based on the foregoing, assuming there was admissible evidence of damages, it is unclear if OGCC is entitled to treble actual damages along with attorney’s fee pursuant to California Penal Code §496(a) and (c).
As provided by Section 727(d)(1), in order to prevail on cause of action to revoke debtor’s discharge, the movant must prove two elements: (1) that discharge was obtained through debtor’s fraud; and (2) the movant did not know of such fraud until after debtor was granted a discharge. Nielson further clarifies that the fraud must be a but-for cause of the discharge. In re Nielsen, 383 F.3d 922, 925-26 (9th Cir. 2004). A debtor is deemed to have obtained his discharge by fraud if: (1) he knowingly and fraudulently made a false oath in or in connection with the bankruptcy proceeding;
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and (2) the oath concerned a material fact that would have resulted in the denial of discharge under 11 U.S.C. § 727(a)(4)(A) had it been known prior to discharge. Jones v. U.S. Trustee, Eugene, 736 F.3d 897, 900 (9th Cir. 2013); In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010). "An omission or misstatement that 'detrimentally affects administration of the estate' is material." In re Retz, at 1198 (quoting Fogal Legware of Switzerland, Inc., v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir. BAP 1999)).
For OGCC to prove that Cardiel’s discharge was "obtained through" the fraud, OGCC must show that, but for the fraud, the discharge would not have been granted. OGCC alleged that Cardiel’s complete omission of the pending criminal litigation involving the restitution order is material because it constitutes over 60% of Cardiel’s total claims.
That argument is of no merit in no-asset bankruptcy filings. Assuming for the purpose of discussion that Cardiel listed this pending criminal litigation and corresponding restitution in his schedules, it would have no effect on any creditors and Cardiel would get his discharged. The omission would not affect administration of the estate given the non-asset bankruptcy filing. Equally importantly, dischargeability of this litigation is unaffected because of Cardiel’s discharge.
Dischargeability is unaffected by scheduling in Chapter 7 no-assets bankruptcy. In re Nielsen, 383 F.3d 922, at 926. A dischargeable debt would have been discharged, and a non-dischargeable debt would not have been discharged, regardless of scheduling. Id. Therefore, OGCC fails to meet its burden of showing there is no issue on the question of whether the omission is material.
As to the failure to disclose the bank accounts and the company, the Court notes that the argument section of OGCC’s motion on §727(d) only deals with Cardiel’s failure to include the criminal litigation in the schedules. It does not mention the failure to disclosure the bank accounts and companies. OGCC has not presented any evidence to establish the value of those assets in order to show that the non-disclosure was material. Assuming there was the evidence of value, in his opposition, Cardiel has presented the indirect evidence of value so as to raise a question of fact, although the court notes that scant evidence, contained in ¶ 10 of Cardiel’s declaration, lacks any appropriate detail so as to be reliable.
Based on all foregoing, this Court determines that the OGCC has not met the burden of showing the absence of a genuine dispute of material facts as to whether Cardiel knowingly and fraudulently made a false oath concerning a material fact that would have resulted in the denial of discharge for the purpose of 11 U.S.C §727(d) and OGCC’s claim under 11 U.S.C §727(d) should be denied.
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Based on the foregoing, the Court is inclined to GRANT the motion under 523(a)
as to liability (but not damages) and DENY the motion as to 727(d).
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Movant(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
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Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 12/11/19, 5/20/20, 7/1/20 Also #31
EH
Docket 1
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
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Adv#: 6:19-01117 Whitmore v. Gularte et al
(HOLDING DATE)
From: 1/8/20, 4/8/20, 4/29/20, 8/26/20 Also #34
EH
Docket 11
BACKGROUND
On May 30, 2019 ("Petition Date"), Blanca Flor Torres ("Debtor") filed a Chapter 7 voluntary petition. On August 22, 2019, Robert S. Whitmore (the Chapter 7 "Trustee") brought an adversary proceeding against Jose Gularte ("Mr. Gularte") and Marjorie Elizabeth Gularte-Torres ("Mrs. Gularte-Torres") (collective, "Defendants") for the benefit of the estate.
The adversary proceeding arose from a real estate transaction between the Debtor and the Defendants. Debtor and her spouse, Edgar S. Torres, bought real estate at 1527 Fairwood Way, Upland, CA 91786 (the "Property) on November 2, 1990.
Less than two years before the Petition Date, on December 29, 2017, Debtor and her spouse transferred the Property to Mr. Gularte. Mr. Gularte then proceeded to transfer the deed to himself and his wife, Mrs. Gularte-Torres.
The Trustee alleges that the transfer among the parties is fraudulent and seeks to avoid the transfer and recover the Property for the estate.
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The Trustee alleges that Defendants are insiders of the Debtor: Mr. Gularte is
the debtor’s son-in-law, and Mrs. Gularte-Torres is the debtor’s daughter. Because Defendants and Debtor still reside at the same Property after the transfers occurred, Trustee alleges that Debtor still retains the benefit of ownership. The Trustee alleges that the consideration given was less than a reasonably equivalent value: a seller credit and a gift were given. The Trustee avers that the value of the consideration given was less than the value of the Debtor’s equity of $154,424.76.
The Trustee served the summons and complaint on Defendants by first-class mail to Defendants’ home on August 23, 2019. After forty-eight days without Defendants pleading or defending against the relief sought by the Trustee, the Trustee requested an entry for default judgment. On October 11, 2019, the Clerk of the Court entered a default judgment against defendants.
The Trustee now files this motion for an entry of default judgment by the Court to avoid and recovery the Property.
Subject Matter Jurisdiction
This Court has subject matter jurisdiction pursuant to U.S.C. §157(b)(1)— Bankruptcy Judges may hear and determine all cases under title 11 and all core proceedings arising under title 11—and 28 U.S.C. §1334. Trustee has asserted a claim arising under title 11, a Chapter 7 voluntary petition, and the matter concerns the administration of an estate. U.S.C. §157(b)(2)(A).
Venue
Venue is proper pursuant to 28 U.S.C. §1409(a):
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"Except as otherwise provided in subsections (b) and (d), a proceeding arising under title 11 or arising in or related to a case under title 11 may be commenced in the district court in which such case is pending."
Debtor’s lead bankruptcy case (19-bk-14650-MH) is currently pending in this Court.
Personal Jurisdiction
Jose Gularte and Marjorie Elizabeth Gularte-Torres are residents of California.
Thus, personal jurisdiction is proper.
Federal Rule of Bankruptcy Procedure 7055 states that default judgments are applicable in adversary proceedings. Fed. R. Bankr. P. 7055. Furthermore, 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). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment.
In this case, the Trustee has fulfilled such requirements in his request for entry of default: (a) the identity of the parties whom default was entered and the date of entry of default; (b) the defaulting party is neither an infant nor an competent person;
the defendants are not currently on active duty in the armed forces, etc. The Trustee also provided information for the Clerk of the Court to rightly determine that defendants failed to plead or otherwise defend within twenty-one days after service of the summons and the complaint. Fed. R. Bankr. P. 7012(a) and (b). Thus, the Clerk entered a valid entry of default.
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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 appears that the motion for default judgment has been properly served.
Entering a Default Judgment by the Court
If the claim in not for a certain or arithmetically attainable sum, then the entry by default judgment must be made by the court. The Trustee has not asked for the value of the Debtor’s equity in the Property, $154,424.76. Instead, the Trustee has asked the Court to rule that the transfers were fraudulent, the transfers should be avoided, and that the Property should be returned to the Debtor’s bankruptcy estate. Thus, by requesting an injunctive relief, the Trustee has correctly sought a motion for default judgment by the Court.
Factors to Consider
When a court exercises its discretion to enter a default judgment it may consider a number of factors: (1) the possibility of prejudice to the plaintiff, (2) the
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merits of plaintiff’s substantive claim, (3) the sum of money at stake in the action (4) the possibility of disputes concerning material facts, (5) whether the default was due to excusable neglect, and (6) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitle v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When it comes to the first factor, the Trustee, being the arbiter of the estate would only be prejudice in his responsibility to provide the best interest of parties in interest. That is, by not recovering the property, the creditors would receive potential less than what they could have.
Merits of Plaintiff’s Claim
The general rule, upon an entry of default, the factual allegations of the plaintiff’s complaint will be taken as true. Totten v. Hurrell, 2001 U.S. Dist. Lexis 20909, *6 (N.D. Cal. 2001). "A default establishes the well-pleaded allegations of a complaint unless they are incapable of proof or are contrary to facts judicially noticed or to uncontroverted material in the file." In re McGee, 359 B.R. 764 (B.A.P 9th Cir.) (emphasis added by italicizing) (citing In re Consolidated Pretrial Proceedings in Air West Sec. Litigation, 436 F. Supp. 1281, 1286 (N.D. Cal. 1977)). A well-pleaded allegation is sufficient to prove defendant’s liability. TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987).
The Trustee alleges, pursuant to 11U.S.C. § 548(a)(1)(A), that Debtor within two years of filing her petition transferred the Property with actual intent to hinder, delay, or defraud. The word ‘intent’ is used to denote that the actor desire to cause consequences of his act. [Vol 5] Collier on Bankruptcy ¶ [548.04] (Richard Levin & Henry J. Sommer eds., 16th ed.). "If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id.
Because it is difficult to prove actual intent, courts infer fraudulent intent from the circumstances surrounding the transfer; including but not limited to (1) insolvency or other unmanageable indebtedness on the part of the debtor, (2) special relationship between the debtor and transferee; and after the transfer, (3) retention by the debtor of the property. In re Acequia, Inc. 34 F.3d 800 (9th Cir. Ct. App. 1994). These circumstances are universally
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recognized as the "badges of fraud." Id.
The Trustee has provided evidence that the value of the Property,
$575,000.000, which was agreed upon by Mr. Gularte and Debtor and her husband, was not given for consideration. (Dkt. No. 11, Ex. 5). In fact, something substantial less was given as consideration because Mr. Gularte received a "gift of equity" in the amount of $150,900.00. This special relationship—Defendants are the daughter and son-in-law of Debtor— precipitated such a gift alleged the Trustee. Furthermore, based on Debtor’s commencement documents, Debtor still lives at the Property, showing that Debtor still retains the benefit of the Property. (Dkt. No. 11, Ex. 7).
Taken as true and neither incapable of proof nor contrary to facts observed by the Court, the Trustee’s allegations are sufficient to prove the claim of an actual fraudulent transfer under 11 U.S.C § 548(a)(1)(A).
Moreover, taking the allegations of the compliant as true as to the second and third claims for relief, the Trustee has sufficiently alleged the elements of a claim for constructively fraudulent transfer against Defendants.
This leaves only one claim of relief left. Whether the Court grants recovery of the Property pursuant to 11 U.S.C. § 550(a). The Court has ruled that Trustee’s allegations are sufficient to prove that the transfer of the Property was fraudulent. Thus, making the transaction avoidable.
Based on the deeds transferring interest in the Property, Mr. Gularte is an immediate transferee and Mrs. Gularte-Torres is a mediate transferee.
Irrespective of how they are defined, 11 U.S.C. § 550(a)(1) and (a)(2) permit the Trustee to recover the property from the Defendants. Seeing no reason to do otherwise, the Court grants the Trustee the Property pursuant to 11 U.S.C. § 550(a).
Possibility of Disputes of Material Facts
The Trustee provided evidence from the Debtor’s commencement document stating the Debtor still resides at the Property. The Trustee provided evidence of the transfer of interest in the property from Debtor and her husband to Defendants. Dkt No. 11, Ex. 3, 4, and 5. Trustee provided evidence of the value of the Property and the consideration given. Dkt. No. 11, Ex 5.
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Furthermore, Trustee duly served Defendants with process in this matter. Thus, the Court finds that the possibility of disputes of material facts is unlikely.
Sum at Stake in the Action
Even though the Trustee is looking for injunctive relief, the value of said property is significant to the estate. The last consideration given for the Property valued it at $575,000.00. Dkt. No.11, Ex 5. The Property would increase the bankruptcy estate by twenty-fold, weighing in favor of Defendants.
Excusable Neglect
Here, Defendants failed to plead or otherwise defend against the claim, and the Court does not otherwise see any basis for excusable neglect in the pleadings.
Strong Policy
Although the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits, the case at hand does not warrant a denial of judgment solely on that ground.
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Thus, the Court is inclined to GRANT the motion to the extent of awarding Trustee judgment on the first, second, third, and fourth claims of relief.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Movant(s):
Robert S. Whitmore Represented By Hydee J Riggs
Plaintiff(s):
Robert S. Whitmore Represented By Hydee J Riggs
Trustee(s):
Robert Whitmore (TR) Represented By Hydee J Riggs
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Adv#: 6:19-01117 Whitmore v. Gularte et al
From: 10/16/19, 12/11/19, 1/8/20, 4/8/20, 4/29/20, 8/26/20
Also #33 EH
Docket 1
- NONE LISTED -
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Defendant(s):
Jose Gularte Pro Se
Marjorie Elizabeth Gularte-Torres Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Hydee J Riggs
Trustee(s):
Robert Whitmore (TR) Represented By Hydee J Riggs
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Adv#: 6:19-01163 O'Neil et al v. Perez et al
(As to Defendant Janyn Perez)
From: 1/29/20, 5/27/20, 7/22/20, 8/26/20, 9/9/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Gabriel Perez Represented By Glen J Biondi
Defendant(s):
Gabriel Perez Represented By Glen J Biondi
Janyn Perez Represented By
Glen J Biondi
Joint Debtor(s):
Janyn Perez Represented By
Glen J Biondi
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Plaintiff(s):
Al Karlson Represented By
Edmond Richard McGuire
Dixie Karlson Represented By
Edmond Richard McGuire
Michael O'Neil Represented By
Edmond Richard McGuire
Trustee(s):
Steven M Speier (TR) Pro Se
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Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
EH
Docket 16
On October 23, 2019, Marc Anthony Capoccia ("Debtor") filed a Chapter 7 voluntary petition. On January 27, 2020, Canyon Springs Enterprises ("Plaintiff") filed a non- dischargeability complaint against Debtor pursuant to 11 U.S.C. § 523(a)(2)(A), (a) (4), and (a)(6). On February 26, 2020, Debtor filed his answer. On April 2, 2020, the Court issued a scheduling order. The scheduling order included a discovery deadline of October 30, 2020, and also ordered the parties to complete mediation by November 30, 2020.
On August 20, 2020, Plaintiff filed a motion to compel Debtor to file amended responses to Plaintiff’s interrogatories and requests for document production. Plaintiff’s motion asserts that Debtor has been uncooperative in the discovery process and has provided responses that have been late and incomplete. Plaintiff also requests attorney fees in the amount of $3,176.25 and an extension of the discovery cut-off and mediation deadlines. On September 17, 2020, Debtor filed his opposition, asserting that he filed revised responses on September 12, 2020, and requesting that he not be sanctioned. On September 23, 2020, Plaintiff filed a reply, which, inter alia, asserted that Debtor’s discovery responses were still deficient.
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Plaintiff’s summary of the timeline leading up to the filing of the motion is as follows:
On May 18, 2020, Plaintiff served discovery requests on Debtor that were due on June 22, 2020;
On June 30, 2020, Plaintiff sent Debtor a meet and confer letter;
Debtor did not in any way respond to the request until July 7, 2020, when he informed Plaintiff he would comply;
Sometime between July 15 and July 17, 2020, Debtor sent his discovery responses, which Plaintiff characterizes as inadequate for a variety of reasons;
On July 21, 2020, Plaintiff sent Debtor a second meet and confer letter;
On August 13, 2020, Plaintiff attempted to notify Debtor of his obligation to apply with various duties under the applicable rules;
After not receiving a timely response from Debtor, Plaintiff filed the instant motion to compel on August 20, 2020.
Local Rule 7026-1(c)(2)-(4) provide that:
Meeting of Parties. Prior to the filing of any motion relating to discovery, the parties must meet in person or by telephone in a good faith effort to resolve a discovery dispute. It is the responsibility of the moving party to arrange the conference. Unless altered by agreement of the parties or by order of the court for cause shown, the opposing party must meet with the moving party within 7 days of service upon the opposing party of a letter requesting such meeting and specifying the
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terms of the discovery order to be sought.
Moving Papers. If the parties are unable to resolve the dispute, the party seeking discovery must file and serve a notice of motion together with a written stipulation by the parties.
The stipulation must be contained in 1 document and must identify, separately and with particularity, each disputed issue that remains to be determined at the hearing and the contentions and points and authorities of each party as to each issue.
The stipulation must not simply refer the court to the document containing the discovery request forming the basis of the dispute. For example, if the sufficiency of an answer to an interrogatory is in issue, the stipulation must contain, verbatim, both the interrogatory and the allegedly insufficient answer, followed by each party’s contentions, separately stated.
In the absence of such stipulation or a declaration of a party of noncooperating by the opposing party, the court will not consider the discovery motion.
Cooperation of Parties; Sanctions. The failure of any party either to cooperate in this procedure, to attend the meeting of parties, or to provide the moving party the information necessary to prepare the stipulation required by this rule within 7 days of the meeting of parties will result in the imposition of sanctions, including the sanctions authorized by FRBP 7037 and LBR 9011-3.
Local Rule 9011-2(d) provides that self-represented individuals must comply with the Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Procedure. Local Rule 9011-3(a) provides that "[t]he violation of, or failure to confirm to, the FRBP or these rules may subject the offending party or counsel to penalties."
FED. R. CIV. P. Rule 7037(a)(3)(B)(iii)-(iv), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 7037, provides grounds for a motion to compel discovery responses when a litigant fails to answer an interrogatory or fails to respond to a request for documents, respectively. FED. R. CIV. P. Rule 7037(a)(4) provides that "an
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evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond."Here, as outlined in Plaintiff’s motion and reply, Debtor’s responses to the discovery requests were: (a) late; (b) evasive; and (c) incomplete.
FED. R. CIV. P. Rule 7037(a)(5) and 7037(d)(3) requires that the Court award a party that successfully brings a motion to compel discovery responses their reasonable expenses incurred in bringing the motion, unless such an award would be unjust.
For the reasons set forth in the motion, the reply, and this tentative ruling, the Court concludes that Plaintiff has sufficiently demonstrated that Debtor has not adequately responded to Plaintiff’s discovery requests, and, therefore, the Court will order Debtor to provide further responses to those discovery requests. Additionally, noting the numerous attempts by Plaintiff to solicit responses from Debtor, and noting the absence in Debtor’s opposition of any valid justification for his non-compliance with Plaintiff’s requests, the Court is inclined to award Plaintiff $3,176.25 in attorney fees and costs, which the Court deems reasonable in these circumstances.
Regarding Plaintiff’s request for an extension of the discovery-cut off, the Court is inclined to find that Movant has provided sufficient cause to extend the discovery deadline to December 18, 2020.
The Court is inclined to GRANT the motion to the extent of: (a) ordering Debtor to file by October 28, 2020, further responses to Plaintiff’s discovery requests to address the deficiencies noted in the reply; (b) ordering Debtor to pay Plaintiff $3,176.25 in reasonable attorney fees and costs related to the bringing of the instant motion; and (c) extending the discovery deadline to December 18, 2020.
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APPEARANCES REQUIRED.
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A Crowder
Defendant(s):
Marc Anthony Capoccia Pro Se
Movant(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
Trustee(s):
Larry D Simons (TR) Pro Se
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Adv#: 6:20-01048 United States Trustee for Region 16 v. Swedan et al
From: 7/1/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Hasan Elmehrek Represented By Keith Q Nguyen
Defendant(s):
Nagla Swedan Represented By Donald W Reid
Hasan Elmehrek Represented By Donald W Reid
Joint Debtor(s):
Nagla Swedan Represented By Keith Q Nguyen
Plaintiff(s):
United States Trustee for Region 16 Represented By
Everett L Green
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Trustee(s):
Charles W Daff (TR) Pro Se
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Adv#: 6:20-01151 Chaffey Federal Credit Union v. Bomar, Jr.
Docket 0
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Defendant(s):
Russell Ray Bomar Jr. Pro Se
Plaintiff(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 8/25/20, 9/8/20 EH
(Tele. appr. Daniel Fujimoto, rep. moving party, U.S. Bank National Association)
Docket 66
- NONE LISTED -
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
Movant(s):
U.S. Bank National Association, as Represented By
Daniel K Fujimoto Caren J Castle
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Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
(Tele. appr. Megan Lees, rep. movant PennyMac Loan Services, LLC) (Tele. appr. Joseline Medrano, rep. Debtor)
Docket 33
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Troy D. Lee Represented By
Gregory Ashcraft
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
EH
(Tele. appr. Jaime Cuevas, rep. Debtor)
(Tele. appr. Wendy Locke, rep. moving party JPMorgan Chase Bank, National Association)
Docket 37
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 REQUIRED.
Debtor(s):
Nery B. Mejia Represented By Jaime A Cuevas Jr.
11:00 AM
Movant(s):
JPMorgan Chase Bank, National Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA NATIONAL ASSOCIATION
From: 8/25/20 EH
(Tele. appr. Sean Ferry, rep. moving party, HSBC Bank USA)
Docket 51
- NONE LISTED -
Debtor(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC Bank USA National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, N.A.
EH
(Tele. appr. Wendy Locke, rep, moving party JPMorgan Chase Bank)
Docket 35
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Loi Phuoc Au Represented By
Todd B Becker
Joint Debtor(s):
Nancy O Sengdara-Au Represented By
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Movant(s):
Todd B Becker
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: J.J.D.C.
EH
(Tele. appr. Vincent Bledsoe, rep. movant J.J.D.C.)
(Tele. appr. Catherine Gayer, rep. creditor, Sun, LLC) - LISTEN ONLY
Docket 15
When considering a motion for relief from the automatic stay to pursue a non- bankruptcy action, the Court considers the Curtis factors:
(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 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
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defending the litigation; (6) whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the good or proceeds in question; (7) whether the litigation in another forum would prejudice the interests of other creditors, the creditor’s committee and other interested parties; (8) whether the judgment claim arising from the foreign action is subject to equitable subordination; (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 and the "balance of hurt."
In re Roger, 539 B.R. 837, 844-45 (C.D. Cal. 2015). In Roger, the Court further stated:
The Ninth Circuit has recognized that the Curtis factors are appropriate, nonexclusive, factors to consider in deciding whether to grant relief from the automatic stay to allow pending litigation to continue in another forum. While the Curtis factors are widely used to determine the existence of cause, not all of the factors are relevant in every case, nor is a court required to give each factor equal weight.
According to the court in Curtis, the most important factor in determining whether to grant relief from the automatic stay to permit litigation against the debtor in another forum is the effect of such litigation on the administration of the estate. Even slight interference with the administration may be enough to preclude relief in the absence of a commensurate benefit. That said, some cases involving the automatic stay provision do not mention the Curtis factors at all.
Nevertheless, although the term "cause" is not defined in the Code, courts in the Ninth Circuit have granted relief from stay under § 362(d)
when necessary to permit pending litigation to be concluded in another forum if the non-bankruptcy suit involves multiple parties or is ready for trial.
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Id. at 845 (quotations and citations omitted). As is typically the case, "[t]he record does not indicate that Curtis factors 3, 4, [ ] 6, 8, or 9 are at issue in this case, nor do the parties argue to the contrary." Id.
Turning to the remaining of the factors, the Court concludes that the majority of the factors weigh in favor of granting Movant relief from the automatic stay. Specifically, while the eleventh factor may weigh against granting relief from stay, because the state court litigation is in its early stages, the remainder of the factors weigh in favor of relief from stay being granted because Movant "seeks recovery only from applicable insurance, if any, and waives any deficiency or other claim against the Debtor or property of the Debtor’s bankruptcy estate." Because Movant has agreed to waive any deficiency claim against Debtor, the continuation of the state court proceedings will not interfere with the administration of the bankruptcy estate or prejudice any creditors. Furthermore, the Court notes that it deems Debtor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h) and 11
U.S.C. § 362(g)(2).
Based on the foregoing, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and GRANT the 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):
Fury Investments, Inc. fdba Zelda's Represented By
Jenny L Doling
Movant(s):
Represented By
Vincent J. Bledsoe
Trustee(s):
Howard B Grobstein (TR) Represented By
Ori S Blumenfeld
11:00 AM
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. moving party GM Financial Services, Inc.)
Docket 10
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Wassim E Homsi Represented By Paul C Nguyen
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Joint Debtor(s):
Evelyn Homsi Represented By Paul C Nguyen
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Mandy D Youngblood
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
(Tele. appr. Vincent Frounjian, rep. moving party American Honda Finance Corporation)
Docket 10
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
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(emphasis added).
Here, Debtor’s statement of intention selects an option, known as "ride- through," that is not available in this circuit and is not an available choice under the statute. See In re Dumont, 581 F.3d 1104 (2009). Debtor was required to select to either abandon or redeem the property, or to enter into a reaffirmation agreement. See 11 U.S.C. § 362(h)(1)(A). As the deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Antonio J Rodriguez Represented By Neil R Hedtke
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: FIRST INVESTORS FINANCIAL SERVICES
EH
(Tele. appr. Sheryl Ith, rep. moving party First Investors)
Docket 9
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Martin Alejandro Leal Represented By
Raj T Wadhwani
Joint Debtor(s):
Monique Marlene Martinez Represented By
11:00 AM
Movant(s):
Raj T Wadhwani
First Investors Financial Services Represented By
Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: MARISOL SMITH
EH
(Tele. appr. Anthony Vigil, rep. Debtor)
Docket 9
Debtor had a previous case dismissed on October 3, 2019. Therefore, pursuant to 11
U.S.C. § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date.
11 U.S.C. § 362(c)(3)(C)(i)(II)(cc) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to perform the terms of a plan confirmed by the Court. Therefore, pursuant to 11 U.S.C. § 362(c)(3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
The Court has reviewed Debtor’s motion, service appears proper, and no opposition was received by the Court. After reviewing the motion, the Court finds that Debtor has provided sufficient detail relating to a change in financial circumstances since the dismissal of the previous case to rebut the statutory presumption that the case was filed in bad faith. Therefore, the Court will GRANT the motion to the extent of CONTINUING the automatic stay as to all creditors. The Court will DENY the
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request to impose the automatic stay because 11 U.S.C. § 362(c)(4) does not apply to the instant case.
APPEARANCES REQUIRED.
Debtor(s):
Marisol Smith Represented By Anthony B Vigil
Movant(s):
Marisol Smith Represented By Anthony B Vigil Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT DEBORAH MULLENIX
EH
(Tele. appr. Joseline Medrano, rep. Debtor)
Docket 14
- NONE LISTED -
Debtor(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano
Movant(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano Joselina L Medrano Joselina L Medrano Joselina L Medrano Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
(Tele. appr. David Golubchik, rep. Debtor, Sunyeah Group Corporation) (Tele. appr. Jeffrey Kwong, rep. Debtor)
Docket 150
On December 30, 2019, Sunyeah Group Corporation ("Debtor") filed a Chapter 11 voluntary petition. On January 7, 2020, Levene Neal Bender, Yoo & Brill L.L.P. ("Counsel") filed an application to be employed as general bankruptcy counsel, which was approved pursuant to Court order entered January 28, 2020.
On February 21, 2020, Debtor filed a sale motion seeking to sell, at an auction, a variety of equipment assets that were used in Debtor’s glass manufacturing, fabrication, and distribution business. The Court approved an application requesting a hearing on shortened time, and an initial hearing was held on March 2, 2020. Debtor’s landlord filed an opposition to the sale motion on February 25, 2020. The Court entered an order granting the motion on March 4, 2020, and Debtor subsequently scheduled an auction for April 23, 2020. The auction resulted in proceeds totaling approximately $700,000.
2:00 PM
Debtor and its landlord subsequently engaged in a variety of litigation/ motion practice, which ultimately resulted in the execution of a global settlement approved on July 15, 2020 [Dkt. No. 126].
On September 15, 2020, Debtor filed its Motion to: (1) Determine Deficiency Claims of Vehicle Lenders; (2) Distribute Funds to Creditors; and (3) Dismiss Chapter 11 Case (the "Distribution Motion") [Dkt. No. 150]. Counsel also filed an application for compensation, seeking an aggregate $247,982.84 [Dkt. No. 151]. The Court has not received any opposition to either motion.
Distribution Motion
The distribution motion contains a variety of distinct requests for relief.
First, Debtors requests authority to abandon three Toyota Priuses (the "Prius Vehicles") pursuant to 11 U.S.C. § 554(a), which provides that: "After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate." For two of the three Prius Vehicles, Debtor has provided evidence, specifically the claims filed by the secured creditor (Claims 8 and 10), that indicate that the fair market value is equal to the amount of the secured claim. As such, the Court can conclude that those two vehicles are burdensome to the estate. For the third, vehicle, related to Claim #12, the only evidence provided by Debtor indicates that Debtor has $4,357.38 in equity in the vehicle. Nevertheless, based upon the probably costs of sale and Debtor’s assertion that previous attempted sales of the Prius Vehicles have fallen through, and noting the lack of opposition to the Distribution Motion, the Court can conclude that the estimated costs of administering the Toyota Prius with VIN # JTDKDTB30G1134663
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exceeds the estimated proceeds that the bankruptcy estate would receive. Therefore, the Court is inclined to GRANT Debtor’s request to abandon the Prius Vehicles.
Debtor’s second request is that "[i]f necessary, the Court should determine: (1) the value of the vehicles, and (2) the vehicle lenders’ deficiency claims." As to all seven vehicles related to the above request, however, Debtor merely relies on the stated debt and fair market value asserted by the secured creditor in the respective proof of claims. As a result, there is no actual controversy or justiciable dispute. See, e.g., MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007).
Debtor’s third request is that the Court approved the approved distribution, attached to the Distribution Motion as Exhibit 1 (and subsequently dismiss the bankruptcy case). Structured dismissals, a relevant recently devised legal approach, still have uncertain legal standards. Specifically, the Court notes two articles written in the ABI Journal that detail the development of structured dismissals as a legal approach. Norman L. Pernick & G. David Dean, Structured Chapter 11 Dismissals: A Viable and Growing Alternative After Asset Sales, 29 AM. BANKR. L. J. 1 (June 2010) and Nan Roberts Eitel et. al., Structured Dismissals, or Cases Dismissed Outside of Code’s Structure?, 30 AM. BANKR. L. J. 20 (March 2011). The first article, written by a Delaware-based restructuring partner, stated the following:
Before considering the factual record necessary for approval of a structured-dismissal motion, a bankruptcy court may first question the propriety of a structured dismissal as a matter of law. In so doing, a court may take the view that the Code does not authorize a structured dismissal, and that a structured dismissal equates to a sub rosa plan. Therefore, such a court might find that the debtor has three choices post-sale: (1) proceed with confirmation of a liquidating chapter 11 plan, (2) convert the case to chapter 7 and allow a chapter 7 trustee to administer the assets, or (3) dismiss the case via a simple dismissal order with no "bells and whistles."
If a bankruptcy court finds that structured dismissal is permissible, which most courts considering the issue to date appear to conclude, the
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next question is what factual showing is necessary to justify entry of a structured dismissal order. Although there are no definitive answers, three factual scenarios describe the circumstances in which most structured dismissals have been approved to date.
The first such case is one in which the debtor’s assets have been sold in the chapter 11 case but the debtor is administratively insolvent or is potentially administratively insolvent and does not have the means to fund the confirmation process. . . .
The second type of case is one in which the debtor has liquidated all of its assets and potentially could confirm a chapter 11 liquidating plan. In such cases, proponents argue that a structured dismissal is most appropriate because funding the plan process would eliminate or reduce the remaining pot of money available for distribution to pay unsecured creditors. Parties seeking approval of such structured dismissals typically argue that § 1112(b)(4)’s list of what constitutes "cause" for dismissal is nonexclusive and that the bankruptcy court has broad discretion to approve a structured dismissal, if it is in the best interests of creditors. . . .
The final scenario where structured dismissals are sought is where a debtor’s assets have not been fully administered by way of a pre- confirmation sale process, but rather a workout has been achieved.
(footnotes omitted).
Nevertheless, the second article, written by an Associate General Counsel for Chapter 11 Practice at the Executive Office for U.S. Trustees, express general concern regarding structured dismissals, noting that "structured dismissals are a new permutation of the sub rosa plan" and that:
First, compared to plan confirmation, structured dismissals "end
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run . . . the protection granted creditors in chapter 11" and strongly resemble impermissible sub rosa plans. Second, unlike chapter 7 liquidation, structured dismissals distribute assets without enforcing priorities, addressing litigation or ensuring accountability for distributing assets. Third, unlike traditional dismissals, structured dismissals fail to reinstate state law creditor remedies."
(footnote omitted); see also Lisa S. Gretchko et. al., Nuts and Bolts of the Structured Dismissal of a Chapter 11 Case, 39 AM. BANKR. L. J. 12 (May 2020) ("It is debatable whether the text of the Bankruptcy Code authorizes structured dismissals."); see also Kaylynn Webb, Utilizing the Fourth Option: Examining the Permissibility of Structured Dismissals That Do Not Deviate from the Bankruptcy Code’s Priority Scheme, 33 EMORY. BANKR. DEV. J. 355 (2016) ("Two notable opponents of structured dismissal are the United States Trustee ("UST") and the American Bankruptcy Institute.").
In accordance with the above articles surveying the state of the law, the Court’s general approach is to weigh the absence of procedural safeguards in a structured dismissal with the harm to creditors caused by a less expeditious alternative exit strategy. Here, however, the case is somewhat unique is that there is more than
$200,000 in estate funds for distribution to general, unsecured creditors.
If the Debtor’s proposed distribution scheme is approved, the Court notes that it is of the opinion that 11 U.S.C. § 1112(b)(4)(A) allows for dismissal/conversion after a Chapter 11 debtor has sold all or substantially all of its assets. Specifically, § 1112(b) (4)(A) provides that cause for dismissal or conversion includes "substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation." It is the Court’s opinion that a business that has been sold and is no longer operating or afforded with any plausible options for generating revenue, will necessarily experience a diminution of the estate and will not have a reasonable likelihood of rehabilitation.
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Application for Compensation
The Court applies 11 U.S.C. § 330(a) to its review of Counsel’s application for compensation. 11 U.S.C. § 330 provides:
11 U.S.C. § 330(a)(1)-(6) provides:
(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103 –
reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and
reimbursement for actual, necessary expenses.
The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested.
In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including –
the time spent on such services;
the rates charged for such services;
whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
whether the services were performed within a reasonable amount of time commensurate with the
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complexity, importance, and nature of the problem, issue, or task addressed;
with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
(4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for –
unnecessary duplication of services; or
services that were not –
reasonably likely to benefit the debtor’s estate; or
necessary to the administration of the case. . . .
The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.
More specifically, when examining an application for compensation, the Court should consider the following questions:
First, were the services authorized? Second, were the services necessary or beneficial to the administration of the estate at the time they were rendered? Third, are the services adequately documented? Fourth, are the fees requested reasonable, taking into consideration the factors set forth in § 330(a)(3)? Finally, in making this determination, the court must take into consideration whether the professional exercised reasonable billing judgment. As stated in In re Riverside- Linden Inv. Co., 925 F.2d 320, 321 (9th Cir. 1991), "when a cost
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benefit analysis indicates that the only parties who will likely benefit from a service are the trustee and his professionals," the service is unwarranted and a court does not abuse its discretion in denying fees for those services.
In re Mednet, 251 B.R. 103, 1089-09 (B.A.P. 9th Cir. 2003) (citation and footnote omitted).
Here, the Court notes that no party has opposed Counsel’s application for compensation, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h). The Court, having review the application for compensation, finds that the services provided were: (1) authorized; (2) necessary or beneficial to the administration of the estate; (3) adequately documented; and (4) generally reasonable pursuant to the standards of § 330(a)(3).
The Court is inclined to GRANT the motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
Movant(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
$15,722.34
EH
(Tele. appr. Jeffrey Kwong, rep. Debtor) (Tele. appr. David Golubchik, rep. Debtor)
Docket 151
On December 30, 2019, Sunyeah Group Corporation ("Debtor") filed a Chapter 11 voluntary petition. On January 7, 2020, Levene Neal Bender, Yoo & Brill L.L.P. ("Counsel") filed an application to be employed as general bankruptcy counsel, which was approved pursuant to Court order entered January 28, 2020.
On February 21, 2020, Debtor filed a sale motion seeking to sell, at an auction, a variety of equipment assets that were used in Debtor’s glass manufacturing, fabrication, and distribution business. The Court approved an application requesting a hearing on shortened time, and an initial hearing was held on March 2, 2020. Debtor’s landlord filed an opposition to the sale motion on February 25, 2020. The Court entered an order granting the motion on March 4, 2020, and Debtor subsequently scheduled an auction for April 23, 2020. The auction resulted in proceeds totaling
2:00 PM
approximately $700,000.
Debtor and its landlord subsequently engaged in a variety of litigation/ motion practice, which ultimately resulted in the execution of a global settlement approved on July 15, 2020 [Dkt. No. 126].
On September 15, 2020, Debtor filed its Motion to: (1) Determine Deficiency Claims of Vehicle Lenders; (2) Distribute Funds to Creditors; and (3) Dismiss Chapter 11 Case (the "Distribution Motion") [Dkt. No. 150]. Counsel also filed an application for compensation, seeking an aggregate $247,982.84 [Dkt. No. 151]. The Court has not received any opposition to either motion.
Distribution Motion
The distribution motion contains a variety of distinct requests for relief.
First, Debtors requests authority to abandon three Toyota Priuses (the "Prius Vehicles") pursuant to 11 U.S.C. § 554(a), which provides that: "After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate." For two of the three Prius Vehicles, Debtor has provided evidence, specifically the claims filed by the secured creditor (Claims 8 and 10), that indicate that the fair market value is equal to the amount of the secured claim. As such, the Court can conclude that those two vehicles are burdensome to the estate. For the third, vehicle, related to Claim #12, the only evidence provided by Debtor indicates that Debtor has $4,357.38 in equity in the vehicle. Nevertheless, based upon the probably costs of sale and Debtor’s assertion that previous attempted sales of the Prius Vehicles have fallen through, and noting the lack of opposition to the Distribution Motion, the Court can conclude that the
2:00 PM
estimated costs of administering the Toyota Prius with VIN # JTDKDTB30G1134663 exceeds the estimated proceeds that the bankruptcy estate would receive. Therefore, the Court is inclined to GRANT Debtor’s request to abandon the Prius Vehicles.
Debtor’s second request is that "[i]f necessary, the Court should determine: (1) the value of the vehicles, and (2) the vehicle lenders’ deficiency claims." As to all seven vehicles related to the above request, however, Debtor merely relies on the stated debt and fair market value asserted by the secured creditor in the respective proof of claims. As a result, there is no actual controversy or justiciable dispute. See, e.g., MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007).
Debtor’s third request is that the Court approved the approved distribution, attached to the Distribution Motion as Exhibit 1 (and subsequently dismiss the bankruptcy case). Structured dismissals, a relevant recently devised legal approach, still have uncertain legal standards. Specifically, the Court notes two articles written in the ABI Journal that detail the development of structured dismissals as a legal approach. Norman L. Pernick & G. David Dean, Structured Chapter 11 Dismissals: A Viable and Growing Alternative After Asset Sales, 29 AM. BANKR. L. J. 1 (June 2010) and Nan Roberts Eitel et. al., Structured Dismissals, or Cases Dismissed Outside of Code’s Structure?, 30 AM. BANKR. L. J. 20 (March 2011). The first article, written by a Delaware-based restructuring partner, stated the following:
Before considering the factual record necessary for approval of a structured-dismissal motion, a bankruptcy court may first question the propriety of a structured dismissal as a matter of law. In so doing, a court may take the view that the Code does not authorize a structured dismissal, and that a structured dismissal equates to a sub rosa plan. Therefore, such a court might find that the debtor has three choices post-sale: (1) proceed with confirmation of a liquidating chapter 11 plan, (2) convert the case to chapter 7 and allow a chapter 7 trustee to administer the assets, or (3) dismiss the case via a simple dismissal order with no "bells and whistles."
If a bankruptcy court finds that structured dismissal is permissible,
2:00 PM
which most courts considering the issue to date appear to conclude, the next question is what factual showing is necessary to justify entry of a structured dismissal order. Although there are no definitive answers, three factual scenarios describe the circumstances in which most structured dismissals have been approved to date.
The first such case is one in which the debtor’s assets have been sold in the chapter 11 case but the debtor is administratively insolvent or is potentially administratively insolvent and does not have the means to fund the confirmation process. . . .
The second type of case is one in which the debtor has liquidated all of its assets and potentially could confirm a chapter 11 liquidating plan. In such cases, proponents argue that a structured dismissal is most appropriate because funding the plan process would eliminate or reduce the remaining pot of money available for distribution to pay unsecured creditors. Parties seeking approval of such structured dismissals typically argue that § 1112(b)(4)’s list of what constitutes "cause" for dismissal is nonexclusive and that the bankruptcy court has broad discretion to approve a structured dismissal, if it is in the best interests of creditors. . . .
The final scenario where structured dismissals are sought is where a debtor’s assets have not been fully administered by way of a pre- confirmation sale process, but rather a workout has been achieved.
(footnotes omitted).
Nevertheless, the second article, written by an Associate General Counsel for Chapter 11 Practice at the Executive Office for U.S. Trustees, express general concern regarding structured dismissals, noting that "structured dismissals are a new permutation of the sub rosa plan" and that:
2:00 PM
First, compared to plan confirmation, structured dismissals "end run . . . the protection granted creditors in chapter 11" and strongly resemble impermissible sub rosa plans. Second, unlike chapter 7 liquidation, structured dismissals distribute assets without enforcing priorities, addressing litigation or ensuring accountability for distributing assets. Third, unlike traditional dismissals, structured dismissals fail to reinstate state law creditor remedies."
(footnote omitted); see also Lisa S. Gretchko et. al., Nuts and Bolts of the Structured Dismissal of a Chapter 11 Case, 39 AM. BANKR. L. J. 12 (May 2020) ("It is debatable whether the text of the Bankruptcy Code authorizes structured dismissals."); see also Kaylynn Webb, Utilizing the Fourth Option: Examining the Permissibility of Structured Dismissals That Do Not Deviate from the Bankruptcy Code’s Priority Scheme, 33 EMORY. BANKR. DEV. J. 355 (2016) ("Two notable opponents of structured dismissal are the United States Trustee ("UST") and the American Bankruptcy Institute.").
In accordance with the above articles surveying the state of the law, the Court’s general approach is to weigh the absence of procedural safeguards in a structured dismissal with the harm to creditors caused by a less expeditious alternative exit strategy. Here, however, the case is somewhat unique is that there is more than
$200,000 in estate funds for distribution to general, unsecured creditors.
If the Debtor’s proposed distribution scheme is approved, the Court notes that it is of the opinion that 11 U.S.C. § 1112(b)(4)(A) allows for dismissal/conversion after a Chapter 11 debtor has sold all or substantially all of its assets. Specifically, § 1112(b) (4)(A) provides that cause for dismissal or conversion includes "substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation." It is the Court’s opinion that a business that has been sold and is no longer operating or afforded with any plausible options for generating revenue, will necessarily experience a diminution of the estate and will not have a reasonable likelihood of rehabilitation.
2:00 PM
Application for Compensation
The Court applies 11 U.S.C. § 330(a) to its review of Counsel’s application for compensation. 11 U.S.C. § 330 provides:
11 U.S.C. § 330(a)(1)-(6) provides:
(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103 –
reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and
reimbursement for actual, necessary expenses.
The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested.
In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including –
the time spent on such services;
the rates charged for such services;
whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
2:00 PM
whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
(4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for –
unnecessary duplication of services; or
services that were not –
reasonably likely to benefit the debtor’s estate; or
necessary to the administration of the case. . . .
The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.
More specifically, when examining an application for compensation, the Court should consider the following questions:
First, were the services authorized? Second, were the services necessary or beneficial to the administration of the estate at the time they were rendered? Third, are the services adequately documented? Fourth, are the fees requested reasonable, taking into consideration the factors set forth in § 330(a)(3)? Finally, in making this determination, the court must take into consideration whether the professional
2:00 PM
exercised reasonable billing judgment. As stated in In re Riverside- Linden Inv. Co., 925 F.2d 320, 321 (9th Cir. 1991), "when a cost benefit analysis indicates that the only parties who will likely benefit from a service are the trustee and his professionals," the service is unwarranted and a court does not abuse its discretion in denying fees for those services.
In re Mednet, 251 B.R. 103, 1089-09 (B.A.P. 9th Cir. 2003) (citation and footnote omitted).
Here, the Court notes that no party has opposed Counsel’s application for compensation, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h). The Court, having review the application for compensation, finds that the services provided were: (1) authorized; (2) necessary or beneficial to the administration of the estate; (3) adequately documented; and (4) generally reasonable pursuant to the standards of § 330(a)(3).
The Court is inclined to GRANT the motion in its entirety.
APPEARANCES REQUIRED.
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
Movant(s):
Levene, Neale, Bender Yoo & Brill Represented By
David B Golubchik
10:00 AM
From: 9/9/20 EH
(Tele. appr. Jose Raygoza, pro se Debtor) (Tele. appr. Vera Raygoza, pro se Debtor)
Docket 27
- NONE LISTED -
Debtor(s):
Jose Luis Raygoza Pro Se
Joint Debtor(s):
Vera Helen Raygoza Pro Se
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
(Tele. appr. Eugenio Ramos, attorney for Debtor) (Tele. appr. Dercy Reyes, pro se Debtor)
(Tele. appr. Leah Reyes, pro se Debtor)
Docket 22
- NONE LISTED -
Debtor(s):
Dercy Reyes Represented By
Eugenio Ramos
Joint Debtor(s):
Leah Reyes Represented By
Eugenio Ramos
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Miguel Angel Ramirez-Lopez Pro Se
Joint Debtor(s):
Cruz Maria Ramirez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 40
Service: Proper Opposition: None
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).
Here, Trustee is basing his requested compensation on $138,483.59 of "total disbursements." However, that amount includes $103,483.59 in administrative expenses, already paid by the settlement administrator from the litigation settlement. (See Dkt. 32, ¶¶ 4-6). These moneys were not, at any time, held or administered by Trustee, let alone received by Trustee, or disbursed by Trustee. Therefore, the
$103,483.59 is not properly categorized as a "disbursement" by the Trustee. In light of the foregoing, the Court is inclined to reduce the basis upon which
11:00 AM
Trustee’s statutory fee is calculated, eliminating those amounts that were at no time administered, held, received, or disbursed by Trustee. The remaining amount actually received and proposed to be distributed by Trustee is $35,000. With this amount as the basis for Trustee’s fee, the Court is inclined to reduce the Trustee’s fees and APPROVE the administrative expenses as follows:
Trustee Fees: $4,250. Trustee Expenses: $116.58
Attorney Fees: $6,738 Attorney Costs: $416.25
APPEARANCES REQUIRED.
Debtor(s):
Gary M Fox Represented By
Gary J Holt
Joint Debtor(s):
Maria T Fox Represented By
Gary J Holt
Trustee(s):
Karl T Anderson (TR) Represented By Richard A Marshack Laila Masud
11:00 AM
(Tele. appr. Larry Simons, chapter 7 Trustee)
Docket 23
Service: Proper Opposition: None
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: $1,150.75 Trustee Expenses: $77.25
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 K. McCullion Represented By Gregory Ashcraft
Joint Debtor(s):
Megan N. McCullion Represented By Gregory Ashcraft
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 23
Service: Proper Opposition: None
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: $677.00 Trustee Expenses: $28.46
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):
Miguel A. Flores Represented By Keith Q Nguyen
Joint Debtor(s):
Gloria Flores Represented By
Keith Q Nguyen
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Lysa Simon, rep. creditor, Chaffey Federal Credit Union)
Docket 27
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Movant(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:19-01080 United States Trustee for the Central District of v. Bastorous et al
From: 7/17/19, 8/28/19, 10/2/19 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):
United States Trustee for the Central Represented By
Everett L Green
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20, 4/15/20, 7/1/20, 7/29/20
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) Represented By
2:00 PM
Monica Y Kim
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
Docket 39
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Movant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
EH
Docket 1
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
From: 9/2/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Niels Erik Torring Pro Se
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Plaintiff(s):
Greg Thompson Represented By John G Dickman
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Adv#: 6:17-01057 Cantu v. Ocwen Loan Servicing, LLC et al
From: 11/15/18, 6/6/19, 10/18/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20, 7/2/20, 8/20/20
EH
Docket 1
Debtor(s):
Irma Cantu Represented By
Leonard J Cravens
Defendant(s):
Ocwen Loan Servicing, LLC Represented By Adam N Barasch
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
Docket 59
Debtor(s):
Feliciano Julian De Vera Represented By Lawrence B Yang
Joint Debtor(s):
Pacita DelaCruz De Vera Represented By Lawrence B Yang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also # EH
Docket 86
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20, 7/2/20, 8/20/20
Also # EH
Docket 24
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 133
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 55
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Represented By
Lisa F Collins-Williams
11:00 AM
Docket 57
Debtor(s):
Coralia Beltran Rivas Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 18
Debtor(s):
Christopher Romash Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 27
Debtor(s):
Christopher Romash Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 20
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA
EH
(Tele. appr. Eric Enciso, rep. creditor, Bank of America)
Docket 48
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on March 2, 2018 less than one year before the instant case was filed on April 6, 2018. The automatic stay expired on May 6, 2018. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Jules A Nelson Represented By Emilia N McAfee
Movant(s):
BANK OF AMERICA, N.A Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROUNDPOINT MORTGAGE SERVICING CORPORATION
EH
Docket 36
The Court, having reviewed and considered the motion, finds cause exists where Debtor has missed seven plan payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request for relief from § 1301(a) co-debtor stay;
-DENY alternative request under ¶ 11 as MOOT;
APPEARANCES REQUIRED.
Debtor(s):
Franklin Rojas Pro Se
Movant(s):
RoundPoint Mortgage Servicing Represented By
Christina J Khil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CREDITOR BROKER SOLUTION INC.
EH
(Tele. appr. Paul Lee, rep. Debtor)
(Tele. appr. Erin McCartney, rep. moving party Broker Solutions, Inc.; dba New American Funding)
Docket 33
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
Movant(s):
Broker Solutions Inc. dba New Represented By
Erin M McCartney
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
Docket 8
11 U.S.C. § 362(h)(1)(A) provides:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection
is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)--
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
(emphasis added).
Here, Debtor’s statement of intention selects an option, known as "ride-through," that is not available in this circuit and as such is not available under the statute. In re Dumont,
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581 F.3d 1104 (2009). The Debtor was required to select to either abandon or redeem the property, or to enter a reaffirmation agreement. See 11 U.S.C. § 362(h)(1)(A). As the deadline for filing or amending the statement of intention has passed pursuant to 11
U.S.C. § 521(a)(2)(A), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Lynsey Ann Stevens Represented By Neil R Hedtke
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY
EH
Docket 43
- NONE LISTED -
Debtor(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
Docket 12
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection 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):
Janelle C. Madrigal Represented By
C Scott Rudibaugh
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
11:00 AM
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: THE RAMA FUND, LLC
(CASE DISMISSED 10/7/20)
EH
(Tele. appr. Martin Phillips, rep. moving party The Rama Fund, LLC)
Docket 18
The Court, having reviewed and considered the motion, is inclined to:
-DENY requests under ¶¶ 2 and 3 as MOOT;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(4) based on multiple prior filing and unauthorized transfer of property;
APPEARANCES REQUIRED.
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
11:00 AM
Movant(s):
The Rama Fund, LLC Represented By Martin W. Phillips
Trustee(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
11:00 AM
MOVANT: AMERICA'S CREDIT UNION
EH
(Tele. appr. Daniel Burbott, rep. moving party America's Credit Union)
Docket 7
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection as MOOT;
APPEARANCES REQUIRED.
Debtor(s):
Francisco Torres Represented By David L Nelson
Movant(s):
America's Credit Union Represented By Daniel B Burbott
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: JESUS PABLOFF AND VIRGINIA PABLOFF
EH
Docket 14
Debtor had a previous case dismissed on June 8, 2020. Therefore, pursuant to § 362(c) (3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date on October 14, 2020.
11 U.S.C. § 362(c)(3)(C)(i)(II)(aa) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to perform the terms of the plan confirmed by the Court. The presumption also exists if there is no "substantial change in the financial or personal affairs of the Debtor." 11
U.S.C. § 362(c)(3)(C)(i)(III). Therefore, pursuant to 11 U.S.C. § 362(c)(3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor claims its finances have stabilized and that it has made twenty-two (22) payments totaling $98,680.82 as evidence that the case was filed in good faith.
However, Debtor’s declaration is deficient because the Debtor’s declaration page is illegible and thus provides no evidence. Accordingly, it does not appear that there is any substantial change in the affairs of the Debtor. As such, the Court is inclined to:
-DENY continuing the automatic stay.
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APPEARANCES REQUIRED.
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
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
MOVANT: BRENADETTE SCHOBY
EH
(Tele. appr. Julian Bach, rep. interested party, GAP Fund LLC)
(Tele. appr. Amelia Velenzuela, rep. creditor, Breckenridge Property Fund 2016 LLC)
Docket 7
Debtor had two (2) previous cases, one most recently dismissed on August 24, 2020 and the other dismissed on October 16, 2019. Therefore, pursuant to § 362(c)(4)(A)(i), there is no automatic stay in effect.
11 U.S.C. § 362(c)(3)(C)(i)(II)(aa) provides for a presumption that this case was filed in bad faith as to all creditors because Debtor’s previous case was dismissed for failure to provide documents to the trustee as required by the Court. The presumption also exists if there is no "substantial change in the financial or personal affairs of the Debtor." 11
U.S.C. § 362(c)(3)(C)(i)(III). Therefore, pursuant to 11 U.S.C. § 362(c)(3)(B)-(C), Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
Here, Debtor claims that the failure to comply with the plan requirements and submit her 2019 tax returns was due to her attorney’s negligence. Therefore, Debtor submits she
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has retained a new attorney in the instant filing to overcome the presumption of bad faith. This shows a substantial change in Debtor’s personal affairs. The Court, finding Debtor meets her burden, is inclined to:
-GRANT imposing the automatic stay. APPEARANCES REQUIRED.
Debtor(s):
Brenadette Schoby Represented By Suzette Douglas
Movant(s):
Brenadette Schoby Represented By Suzette Douglas Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: US BANK NATIONAL ASSOCIATION
From: 7/21/20, 8/18/20, 9/29/20 EH
(Tele. appr. Eric Enciso, rep. creditor, U.S. Bank)
Docket 82
Service: Proper Opposition: Yes
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY request for relief from § 1301 co-debtor stay because it does not appear that the motion was served on any "co-debtor"
-DENY alternative request under ¶ 13 as moot.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry Natalie E Lea
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MEB LOAN TRUST IV, U.S. BANK NATIONAL ASSOCIATION
From 9/29/20 EH
Docket 95
- NONE LISTED -
Debtor(s):
Calvin S. Winn Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Diana M. Winn Represented By Christopher J Langley Michael Smith
Movant(s):
MEB Loan Trust IV, U.S. Bank Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
(Tele. appr. Eric Bensamochan, rep. Debtor)
Docket 253
Fed. R. Bankr. P. 3022 states:
After an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case.
The Advisory Committee Notes provide that "entry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed." The factors to consider are:
whether the order confirming the plan has become final, (2) whether deposits required by the plan have been distributed, (3) whether the property proposed by the plan to be transferred has been transferred, (4) whether the debtor or the successor of the debtor under the plan has assumed the business or the management of the property dealt with by the plan, (5) whether payments under the plan have commenced, and (6) whether all motions, contested matters, and adversary proceedings have been finally resolved.
Fed. R. Bankr. P. 3022 advisory committee’s note (1991).
Here, the order confirming Debtor’s plan is final. Debtor has sold the property located at
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3095 Ocelot Circle, Corona, CA and begun making plan payments. Debtor asserts he will complete his plan payments with the funds from the proceeds of sale and the income currently generated by his business, Carla’s Café. There are no remaining contested or adversary matters to be resolved.
The Court, having reviewed the motion and finding Debtor’s evidence sufficient, is inclined to GRANT the motion for entry of final decree.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
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From: 4/1/20, 5/13/20, 9/9/20 EH
Docket 464
- NONE LISTED -
Debtor(s):
Abel Solorzano Represented By Byron Z Moldo Howard Camhi
Joint Debtor(s):
Irma Solorzano Represented By Byron Z Moldo Howard Camhi
Trustee(s):
Howard B Grobstein (TR) Represented By Ivan L Kallick
11:00 AM
EH
Docket 224
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. Among the assets of the estate is certain real property located at 13834 Huntervale Dr., Corona, CA 92880 (the "Property"). Trustee has employed Weiland Golden Goodrich LLP ("Counsel") as counsel pursuant to order entered May 4, 2018.
On September 17, 2020, Trustee filed a motion for an order: (1) compelling Debtors to turn over property of the estate pursuant to 11 U.S.C. § 542(a); and (2) issuing a write of execution pursuant to FED. R. BANKR. P. Rule 7070. On September 30, 2020, Debtors filed an opposition, although the Court notes that the opposition does not contain a proof of service.
Based upon the motion and supporting evidence filed by Trustee and the opposition filed by Debtors, the Court can define the primary dispute between the parties as a disagreement about what actions Debtors need to take to reasonable cooperate with
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the Trustee’s marketing and sale of the Property, especially in light of the COVID-19 pandemic.
11 U.S.C. § 542(a) states:
Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
The standard for a turnover action is well established:
"To prevail in a turnover action under § 542, the party seeking turnover must establish (1) that the property is or was in the possession, custody or control of an entity during the pendency of the case, (2) that the property may be used by the trustee in accordance with § 363 or exempted by the debtor under § 522; and (3) that the property has more than inconsequential value or benefit to the estate."
In re Bailey, 380 B.R. 486, 490 (B.A.P. 6th Cir. 2008); see also In re Newman, 487
B.R. 193 (B.A.P. 9th Cir. 2013). Here, none of these elements are in dispute and it is clear that Trustee has met his burden to request turnover of the Property.
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In their opposition, Debtors say they are willing the cooperate with the marketing and sale of the Property, and that they have legitimate health concerns relating to the COVID-19 pandemic. The e-mail exchanges attached to the motion as Exhibit 3 seem to indicate that: (a) Debtors have been relatively dilatory in responding to the Trustee’s requests; (b) Debtors have expressed a willingness to allow for remote and remote tours of the Property; and (c) Debtors have adamantly refused to allow physical access to the Property.
The Court notes that the e-mail exchanges appear to imply that Trustee is amenable to virtual/remote tours. For example, in an e-mail sent on July 15, 2020, Counsel writes: "My suggestion is one of the debtors coordinates showings with the broker. Mr. or Mrs. Bastorous can walk around the premises with their phone on Facetime or a similar application." Upon learning that a real estate broker wanted to have a professional photographer take pictures, and that potential buyers may request an in- person tour, Debtors responded that they "are not allowing anyone in our house period."
The Court is inclined to delineate reasonable and specific instructions for cooperation in the marketing and sale of the Property. The Court is also inclined to continue the hearings and may approve a writ of execution upon evidence submitted by Trustee that there has been a material default by the Debtor in adherence to those instructions. To that end, Trustee and Debtors are to apprise the Court, with reasonable specificity, of the cooperation necessary to market and sell the property and Debtors’ ability and willingness to offer that cooperation.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
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Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
EH
Docket 205
On February 7, 2018, Vance Johnson ("Debtor") filed a Chapter 7 voluntary petition. On June 5, 2018, Debtor filed a motion to convert the case to Chapter 7 and, on July 3, 2018, the Court converted the case to Chapter 7.
On July 12, 2018, Trustee filed an application to employ Levene, Neale, Bender, Yoo & Brill L.L.P. ("Applicant") as general bankruptcy counsel, which was approved pursuant to order entered August 14, 2018. On August 20, 2018, the Court approved a compromise between Trustee and Debtor that enabled Debtor to continue to reside at his residence on the condition that Debtor apply his existing funds towards his mortgage and remain current on utility bills. On September 5, 2018, Trustee filed a motion to sell Debtor’s principal residence. The Court entered an order approving the sale on September 28, 2018, and conducted a continued hearing on the proper allocation of the homestead exemption funds, with that remaining issue being resolved by Court order entered October 25, 2018.
On October 8, 2018, Trustee filed a motion to approve a settlement with Debtor’s ex- wife, Joana Johnson ("Joana"), regarding funds held by Joana’s state court attorney. Pursuant to the terms of the settlement, the estate received $12,500, while Joana received the remaining $83,116.35. The Court approved the settlement pursuant to order entered October 26, 2018. On April 6, 2020, Debtor received a discharge.
On November 21, 2019, Applicant filed an application for final compensation. Because there are still two pending adversary cases, however, Trustee is not yet ready
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to file his final report. On September 21, 2020, Applicant withdrew its applications for final compensation, and, the next day, refiled the application as an application for interim compensation.
The Court notes a couple issues with the instant fee application. First, the notice of hearing sent out by Applicant [Dkt. No. 207] provides for an objection deadline of October 30, 2020. Second, the Court notes that the narrative history provided by Applicant does not meaningfully explain why the instant case is so administratively insolvent. The Ninth Circuit has previously stated "counsel was obligated to consider":
Is the burden of the probably cost of legal services disproportionately large in relation to the size of the estate and maximum probable recovery?
To what extent will the estate suffer if the services are not rendered?
To what extent may the estate benefit if the services are rendered and what is the likelihood of the disputed issues being resolved successfully?
Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 958-59 (9th Cir. 1991); see also In re Auto Parts Club, Inc., 211 B.R. 29 (B.A.P. 9th Cir.
1997) (citing In re Kitchen Factors, Inc., 143 B.R. 560 (B.A.P. 9th Cir. 1992) (holding that "attorney must scale back its services based on the reasonable expected recovery for the estate"). These considerations derive from the principle that "bankruptcy estates should not be administered for the sole or primary benefit of the professionals appointed to administer such estates." In re Toney, 171 B.R. 414, 415 (Bankr. S.D. Fla. 1994).
Here, while the Court does not consider the reduced amount requested by Applicant,
$44,661.62, to be unreasonable in relation to the services provided in this case, the record presented to the Court does not clearly establish that the extent of the services rendered was "reasonably likely to benefit the debtor’s estate" and "necessary to the administration of the case," and furthermore it appears final fees are more appropriate than an interim request under these circumstances."
APPERANCES REQUIRED.
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Debtor(s):
Vance Zachary Johnson Represented By Robert P Goe
Trustee(s):
Todd A. Frealy (TR) Represented By Monica Y Kim
11:00 AM
EH
Docket 79
On May 15, 2019, Anthony Amatulli ("Debtor") filed a Chapter 7 voluntary petition. On May 29, 2019, Debtor filed his schedules Schedule A listed certain real property located at 27321 La Piedra Rd., Menifee, CA 92584 (the "Property"). Schedule A identified the value of the Property as $410,000. Schedule C purported to claim an exemption in the Property up to any statutory limit. Schedule D identified two creditors holding a security interest in the Property: (1) Wells Fargo Bank (in the amount of $105,669); and (2) World Business Lenders (in the amount of
$164,523.08). On July 10, 2019, Debtor amended his claimed exemption in the Property, claiming an exemption amount of $75,000. On November 25, 2019, Debtor received a discharge.
On January 6, 2020, the Court approved the application of Levene, Neal, Bender, Y00 & Brill L.L.P. to be employed as general bankruptcy counsel for Trustee. On March 13, 2020, Trustee filed a motion to approve a compromise with WBL SPO I, LLC ("WBL"), as successor in interest to World Business Lenders, LLC related to the treatment of its secured claim in connection with the sale of estate property. The
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stipulation provides that WBL would receive $101,004.61 from escrow on account of its lien and the other half of its claim, filed on November 12, 2019, as Claim 4, would be paid pro rata as an unsecured claim. On April 2, 2020, the Court approved the compromise motion. On May 11, 2020, the Court approved the application of Steven
M. Speier to be employed as real estate broker for Trustee.
On September 23, 2020, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Sher Campbell (the "Purchaser") for $350,000. Proposed payments from the proceeds include: (1) $21,000 for real estate commission; (2) $7,000 for escrow and titles fees; (3) $108,000 for the secured claim of Wells Fargo (4)
$101,004.610 for the secured claim of WBL; and (5) $75,000 for Debtor’s exemption, leaving $37,996 for the bankruptcy estate. On September 30, 2020, WBL filed a non- opposition to the sale motion.
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 declaration of Brian Thompson attached to the motion contains adequate evidence of the Property’s marketing. Specifically, the Court notes that Trustee employed a real estate broker to begin marketing the Property in April 2020 and the
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declaration of Brian Thompson indicates that the marketing produced multiple offers, more than fifty inquiries, and more than 500 views.
The Court notes, however, that is has some concerns regarding the decision to sell the Property. Specifically, the Court notes that the Ninth Circuit has previously stated "counsel was obligated to consider":
Is the burden of the probably cost of legal services disproportionately large in relation to the size of the estate and maximum probable recovery?
To what extent will the estate suffer if the services are not rendered?
To what extent may the estate benefit if the services are rendered and what is the likelihood of the disputed issues being resolved successfully?
Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 958-59 (9th Cir. 1991); see also In re Auto Parts Club, Inc., 211 B.R. 29 (B.A.P. 9th Cir.
1997) (citing In re Kitchen Factors, Inc., 143 B.R. 560 (B.A.P. 9th Cir. 1992) (holding that "attorney must scale back its services based on the reasonable expected recovery for the estate"). These considerations derive from the principle that "bankruptcy estates should not be administered for the sole or primary benefit of the professionals appointed to administer such estates." In re Toney, 171 B.R. 414, 415 (Bankr. S.D. Fla. 1994).
Here, the proposed distribution outlined in the motion indicates that there were likely be approximately $15,000 for distribution to unsecured creditors. The Court further notes that the dominant unsecured creditor, WBL, is only an unsecured creditor by virtue of the compromise entered into with Trustee. As a result, it would appear that only approximately 1% of the sale proceeds will go to creditors that file unsecured claims.
Sale Free & Clear of Liens
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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, Trustee requests authority to sell the Property free and clear of the liens of WBL and the IRS. Regarding WBL, the Court finds that Trustee has sufficiently establishing grounds to sell free and clear pursuant to § 363(f)(2) based on WBL’s non-opposition to the instant motion, as well as the previous compromise approved by the Court. Regarding the IRS, the Court agrees with Trustee that the tax lien is in bona fide dispute under § 363(f)(4) because the tax lien was recorded postpetition in violation of the automatic stay. See, e.g., In re Fuller, 134 B.R. 945 (B.A.P. 9th Cir.
1992); see also Rochowicz v. I.N.S., 1995 WL 261140 at *4 (9th Cir. 1995) ("The Government concedes that it filed a notice of tax lien on November 2, 1988 while the Rochowiczs were in bankruptcy. As such, this notice of lien violated the automatic stay and is concededly void.").
14-Day Stay
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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 $21,000 and finds such compensation to be reasonable in the circumstances.
Trustee to address the concerns raised in section I above.
APPEARANCES REQUIRED.
Debtor(s):
Anthony Joseph Amatulli Represented By Stephen F Lopez
Movant(s):
Arturo Cisneros (TR) Represented By Todd A Frealy
11:00 AM
Trustee(s):
Carmela Pagay
Arturo Cisneros (TR) Represented By Todd A Frealy Carmela Pagay
11:00 AM
From: 9/10/20 EH
Docket 36
- NONE LISTED -
Debtor(s):
Miguel Perez Represented By
Peter L Nisson - SUSPENDED BK -
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Real Property located at 45818 Duquesne Street, Indo, CA 92201 EH
Docket 38
- NONE LISTED -
Debtor(s):
Raymundo Avalos Sanchez Represented By Robert L Firth
Joint Debtor(s):
Gema Avalos Represented By Robert L Firth
Movant(s):
Lynda T. Bui (TR) Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 26
- NONE LISTED -
Debtor(s):
Trevor Richard Lavoie Represented By James P Doan
Joint Debtor(s):
Jamie Suann Lavoie Represented By James P Doan
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
From: 8/19/20, 9/30/20 EH
Docket 114
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
Movant(s):
Donald Sutcliffe Pro Se
Trustee(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
2:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
EH
Also #8.1
Docket 10
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. On May 4, 2018, Trustee employed Weiland Golden Goodrich LLP as counsel for the bankruptcy estate. On December 5, 2019, the Court extended the deadline for Trustee to file avoidance actions until March 6, 2020; that deadline was subsequently extended to May 11, 2020 [Dkt. No. 115]. On May 1, 2020, the Court ordered Debtors’ bankruptcy estate to be substantively consolidated with thirty-seven related entities.
On May 11, 2020, Trustee filed a complaint against Raafat Yousef ("Defendant"). Trustee’s complaint contained three causes of action: (1) actually fraudulent transfer;
constructively fraudulent transfer; and (3) recovery of avoided transfers.
The complaint generally alleges that Debtors perpetrated a Ponzi scheme. Specifically, Debtors induced friends, acquaintances, and members of their church to invest in a real estate flipping investment by representing that their investment would used in
2:00 PM
relation to a real estate project. Instead, Debtors operated in a typical Ponzi scheme fashion, using subsequent investments to pay off earlier investments at a profit.
Debtors also used some of the funds to pay off their personal and business expenses, and, for other investors, convinced the investor to reinvest the money.
Defendant in this action is one of the investors who received prepetition payment from Debtors. Specifically, Defendant received payment in the amount of $196,002.20 from an entity controlled by Debtors, Professional Group LLC.
On September 22, 2020, Trustee filed a motion for default judgment. The motion for default judgment only requests judgment as to the second and third causes of action in the complaint.
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, Defendant was served at 18700 Yorba Linda Blvd., Apt. 97, Yorba Linda, CA 92886-4176. It does not appear there is any information in the record that would establish that this is a proper service address for Defendant, or would indicate how Trustee determined that the address used was actually a valid service address for Defendant.
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, although the motion for default judgment appears to have only proceed upon the second and third causes of action.
Regarding avoidance of fraudulent transfer – constructive intent, the second claim for
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relief cites 11 U.S.C. §§ 548(a)(1)(B) & 550 and CAL. CIV. CODE § 3439.04(a)(2) & 3439.05(a). A common problem with Trustee’s allegations related to the causes of action under 11 U.S.C. § 548(a)(1)(B) and CAL. CIV. CODE § 3439.04(a)(2) & 3439.05(a) is the absence of reasonably equivalent value. Specifically, the motion for default judgment’s discussion of this element reads, in its entirety:
The Transfers were made (see Complaint, paragraph 36) in exchange for less than equivalent value in exchange. Namely, PIG did not receive any money or property from the Defendant in exchange for the Transfers. Hence, less than reasonably equivalent value was received in exchange for the Transfers.
[Dkt. No. 10, pg. 6, lines 10-13]. As Trustee notes, the Court’s order substantively consolidating Debtors’ bankruptcy estate with thirty-seven related entities consolidated "the assets, debts and obligations of the Related Entities into the Bankruptcy Case." And, while not explicitly stated in the complaint, the general narrative in the complaint makes clear that the Defendant (as well as the defendants in the numerous related adversary cases) were investors in Debtors’ Ponzi-scheme who received more favorable treatment than other investors.
In accordance with the foregoing, the Court finds the summary discussion of whether reasonable equivalent value was received to be insufficient to establish a constructively fraudulent transfer. Absent evidence regarding the amount of the original investment upon which Defendant received the subject transfer, the Court does not have evidence to determine whether the value provided by Defendant was "reasonably equivalent." And the Court finds that an assertion that no value was received is inconsistent with the allegations pled in the complaint.
Trustee to address the issues raised above.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P. Pringle Represented By David M Goodrich
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Also #8
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
2:00 PM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20, 4/15/20, 7/1/20, 7/29/20, 10/7/20
EH
Docket 1
4/15/20
Opposition: None Service: Proper
Pursuant to the stipulation agreement between Bankers Health Care Group, LLC, and Vance Zachary Johnson, the Court GRANTS this stipulation to continue Status Conference to July 1, 2020. A Status Report is due on June 24, 2020.
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):
Vance Zachary Johnson Represented By Robert P Goe
2:00 PM
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) Represented By Monica Y Kim
2:00 PM
Adv#: 6:20-01129 Visiting Nurse Association of the Inland Counties v. Del Gado et al
(AS TO DEFENDANT MICHAEL RUSNAK ONLY)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Defendant(s):
Greg Del Gado Represented By
W. Derek May
Bruce Gordon Pro Se
Stuart Furman Pro Se
Lois Beckman Pro Se
2:00 PM
Gema Ptasinsky Pro Se
Mary Anne Benzakein Pro Se
Mike Rusnack Pro Se
Maria Lozano Pro Se
Karen Emery Pro Se
Jean Kryger Pro Se
Oscar Brambila Pro Se
DOES 1 to 100, inclusive Pro Se
Plaintiff(s):
Visiting Nurse Association of the Represented By
Jason B Komorsky
2:00 PM
Adv#: 6:19-01126 Shelby v. SOFI LENDING CORP.
From: 1/15/20, 3/25/20, 4/1/20, 7/15/20 EH
Docket 17
- NONE LISTED -
Debtor(s):
Jesse Joseph Shelby Represented By Steven A Alpert
Defendant(s):
SOFI LENDING CORP. Pro Se
Joint Debtor(s):
Tina Marie Shelby Represented By Steven A Alpert
Plaintiff(s):
Jesse Joseph Shelby Represented By Christine A Kingston
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
From 10/7/20 EH
Also #13
Docket 1
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
2:00 PM
Yan Sum Alvarado Represented By Tyler H Brown
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
EH
Also #12
Docket 39
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Movant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By
2:00 PM
Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01023 Zurich American Insurance Company v. Zhang
From: 4/16/20, 5/13/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Defendant(s):
Yan Zhang Represented By
Ramiro Flores Munoz
Plaintiff(s):
Zurich American Insurance Represented By Lincoln V Horton
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
From: 9/2/20, 10/7/20 EH
Also #16
Docket 1
- NONE LISTED -
Debtor(s):
Niels Erik Torring Pro Se
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Plaintiff(s):
Greg Thompson Represented By John G Dickman
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
Also #15
Docket 11
On February 25, 2020, Niels & Sonja Torring (collectively, "Debtors") filed a pro se Chapter 7 voluntary petition. On July 10, 2020, Debtors received a Chapter 7 discharge.
On July 1, 2020, Greg Thompson ("Plaintiff") filed a complaint against Niels Thompson ("Defendant") to determine dischargeability of debt pursuant to 11 U.S.C.
§ 523(a)(2)(A), (a)(4), and (a)(6). On August 10, 2020, the clerk entered Defendant’s default.
On September 18, 2020, Plaintiff filed a motion for default judgment. On October 2, 2020, Defendant filed a pro se pleading, which appears to be an answer, but could also be construed as an opposition to the motion for default judgment. The pleading alleges that the adversary complaint fails to state a claim and is barred by the statute of limitations. The Court notes that Defendant signed the proof of service himself.
2:00 PM
The Court notes that Defendant is still in default. While being in default would preclude Defendant from raising factual arguments, it would not appear to preclude him from raising legal arguments. See, e.g., 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) ("A default is not an absolute confession of liability. A defaulting party does not admit to facts that are not well-pleaded or to conclusions of law.") (collecting cases); see also Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). The pleading filed by Defendant raise legal arguments, not factual arguments.
FED. R. BANKR. P. Rule 4007(c) provides:
Except as otherwise provided in subdivision (d), a complaint to determine the dischargeability of a debt under § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). The court shall give all creditors no less than 30 days’ notice of the time so fixed in the manner provided in Rule 2002. On motion of a party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be filed before the time has expired.
Here, Defendant is correct that Plaintiff filed the instant adversary proceeding after the deadline imposed by Rule 4007(c) had expired. The Ninth Circuit has previously stated that: "Consistent with the plain language of FRBP 4007(c) and 9006(b)(3), we have repeatedly held that the sixty-day time limit for filing nondischargeability complaints under 11 U.S.C. § 523(c) is ‘strict’ and, without qualification, ‘cannot be extended unless a motion is made before the 60-day limit expires.’" Anwar v.
Johnson, 720 F.3d 1183, 1187 (9th Cir. 2013) (collecting cases).
2:00 PM
The Court is inclined to CONTINUE the matter for the parties to file supplemental briefs responding to the issues raised above.
APPEARANCES REQUIRED.
Debtor(s):
Niels Erik Torring Pro Se
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Movant(s):
Greg Thompson Represented By John G Dickman
Plaintiff(s):
Greg Thompson Represented By John G Dickman
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
(Tele. appr. Daniel King, rep. Debtor)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
Docket 95
- NONE LISTED -
Debtor(s):
Franklin Merl Thomas King Represented By Daniel King
Movant(s):
Franklin Merl Thomas King Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. James Hornbuckle, rep. Debtor)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
Docket 83
- NONE LISTED -
Debtor(s):
George P. Solorio Jr. Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. David Lozano, rep. Debtor)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
Docket 77
- NONE LISTED -
Debtor(s):
Brian Richard DeMoulpied Represented By David Lozano
Movant(s):
Brian Richard DeMoulpied Represented By David Lozano David Lozano David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(HOLDING DATE)
From: 6/4/18, 8/30/18, 11/15/18, 6/6/19, 10/17/19, 12/19/19, 1/30/20, 4/23/20, 4/30/20, 5/14/20, 7/2/20, 8/20/20, 10/8/20
Also #5 EH
(Tele. appr. Theron Covery, rep. creditor, Ocwen Loan Servicing, LLC and PHH Corporation)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
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
EH
(Tele. appr. Theron Covery, rep. creditor, Ocwen Loan Servicing, LLC and PHH Corporation)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
Docket 86
- NONE LISTED -
Debtor(s):
Irma Dalia Cantu Represented By Leonard J Cravens
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
Ernesto Ayon Lopez Represented By James G. Beirne
Joint Debtor(s):
Dolores Millan Sanchez Represented By James G. Beirne
Movant(s):
Ernesto Ayon Lopez Represented By James G. Beirne
Dolores Millan Sanchez Represented By James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. David Lozano, rep. Debtors)
(Tele. appr. Joey De Leon. rep. chapter 13 trustee)
Docket 63
- NONE LISTED -
Debtor(s):
Jose Guadalupe Lopez Represented By David Lozano
Joint Debtor(s):
Margarita Lopez Represented By David Lozano
Movant(s):
Jose Guadalupe Lopez Represented By David Lozano
Margarita Lopez Represented By David Lozano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joseline Medrano, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 31
- NONE LISTED -
Debtor(s):
Janelle A. Kline Represented By Gregory Ashcraft
Movant(s):
Janelle A. Kline Represented By Gregory Ashcraft Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. John Brady, rep. Debtors)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 130
- NONE LISTED -
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Movant(s):
Patricia Ellen Bond-Gomez Represented By John F Brady John F Brady John F Brady John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Erika Luna, rep. Debtors)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 42
- NONE LISTED -
Debtor(s):
Carlos Rizo Represented By
Erika Luna
Joint Debtor(s):
Desiree Santistevan Represented By Erika Luna
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Norma Duenas, rep Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 55
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Paul Lee, rep. Debtors)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 36
- NONE LISTED -
Debtor(s):
Delmer Sylvester Represented By Paul Y Lee
Joint Debtor(s):
Susan Sylvester Represented By Paul Y Lee
Movant(s):
Delmer Sylvester Represented By Paul Y Lee
Susan Sylvester Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. James Hornbuckle, rep. Debtors) (Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 32
- NONE LISTED -
Debtor(s):
Zackery B. Ogletree Represented By
James D. Hornbuckle
Joint Debtor(s):
Danielle Police Represented By
James D. Hornbuckle
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 58
- NONE LISTED -
Debtor(s):
Deborah Sue Burton Represented By
Wilfred E. Briesemeister
Movant(s):
Deborah Sue Burton Represented By
Wilfred E. Briesemeister
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joshua Stemberg, rep. Debtors)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 69
- NONE LISTED -
Debtor(s):
Bridgette Donnais Turner Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/8/20 Also #17
EH
(Tele. appr. Andy Warshaw, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 27
- NONE LISTED -
Debtor(s):
Christopher Romash Represented By Andy C Warshaw
Movant(s):
Christopher Romash Represented By Andy C Warshaw Andy C Warshaw Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/8/20 Also #16
EH
(Tele. appr. Andy Warshaw, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 18
10/15/2020
On May 19, 2020, Christopher Romash ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s Chapter 13 plan was confirmed on September 1, 2020.
On July 8, 2020, Sherwood Management Company Inc. DBA Daniel’s Jewellers ("Claimant") filed a proof of claim in the amount of $1,795.86 ("Claim 11"). On July 30, 2020, Debtor filed this instant motion objecting to Claim 11. Debtor argues that under California law, C.C.P. § 337, Claim 11 is barred by the statute of limitations, as the last payment on the contract was made on June 22, 2012, over four years prior to the filing of the petition. On August 12, 2020, Claimant attempted to withdraw Claim 11.
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.
Pursuant to 11 U.S.C. § 502(b)(1) claim objections may be based on non-bankruptcy law. § 502(b)(1) provides:
(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
11:00 AM
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;
11 U.S.C. § 502(b)(1) (emphasis added). Accordingly, "[a] claim cannot be allowed if it is unenforceable under non-bankruptcy law." Diamant v. Kasparian (in re Southern Cal. Plastics, Inc.), 165 F.3d 1243, 1247 (9th Cir. 1999).
Additionally, once an objection to a claim is filed, a proof of claim cannot be withdrawn. Fed. R. Bankr. P. 3006 provides:
A creditor may withdraw a claim as of right by filing a notice of withdrawal, except as provided in this rule. If after a creditor has filed a proof of claim an objection is filed thereto or a complaint is filed against that creditor in an adversary proceeding, or the creditor has accepted or rejected the plan or otherwise has participated significantly in the case, the creditor may not withdraw the claim except on order of the court after a hearing on notice to the trustee or debtor in possession, and any creditors' committee elected pursuant to § 705(a) or appointed pursuant to § 1102 of the Code. The order of the court shall contain such terms and conditions as the court deems proper.
Unless the court orders otherwise, an authorized withdrawal of a claim shall constitute withdrawal of any related acceptance or rejection of a plan.
Fed. R. Bankr. P. 3006 (emphasis added).
Here, despite Claimant’s attempt to withdraw Claim 11, it remains a disputed matter until the Court hearing. The Court is inclined to find that Debtor has met its burden to object to the validity of the claim. Pursuant to California law, C.C.P. § 337, Claim 11 is barred by the four-year statute of limitations, as the last payment was made over eight years ago.
11:00 AM
The Court is inclined to SUSTAIN the objection and DISALLOW Claim 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):
Christopher Romash Represented By Andy C Warshaw
Movant(s):
Christopher Romash Represented By Andy C Warshaw Andy C Warshaw Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joseline Medrano, rep. Janelle Kline) (Tele. appr. Joey, De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Michael S. McDonald Represented By Joselina L Medrano
Joint Debtor(s):
Viviana S. McDonald Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Julie Villalobos, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Steve Anthony Cwynar Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Jennifer Tanios, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Aleksey Ivanovich Svirid Represented By Michael T Reid
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Edgar Lombera, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Debra Jane Engers Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Odie Valtino Mack Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Susan Lorraine Haupert Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rebecca Tomilowitz, rep. Debtor) (Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Araceli Perez Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Beatriz Galarza Represented By Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Vilma Aragon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Manuel Rios Represented By
Paul Y Lee
Joint Debtor(s):
Sandra Subia Rios Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Keith Higginbotham, rep. creditor, Pensco Trust) (Tele. appr. James Hornbuckle, rep. Debtors)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Glen H. Holmes Represented By
James D. Hornbuckle
Joint Debtor(s):
Stephanie L. Holmes Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/8/20 EH
(Tele. appr. Julie Villalobos, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 20
To avoid a junior lien under 11 U.S.C. §506(d), Debtor must establish that there is insufficient equity in the property to secure the lien.
Here, Debtor first submits a mortgage statement from January 11, 2020, approximately eight months prior to the petition date. This is insufficient evidence to establish that the amount of the first position lien is $336,610.21 as of the petition date.
Second, Debtor submits an appraisal report valuing the property at $320,000. The Court notes an inconsistency in the report. The appraiser writes that the "overall appeal is avg-condition for the neighborhood," yet he reduces the overall value of the property by $50,000-$80,000 in comparison to comparable sales in the $370k-$399K range. This raises a question as to the validity of the appraisal.
The outdated mortgage statement combined with the suspect appraisal do not persuade the Court that there is insufficient equity in the property to secure the junior lien.
11:00 AM
Accordingly, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Movant(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 102
- NONE LISTED -
Debtor(s):
Lucianna P Wais Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. John Brady, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 150
- NONE LISTED -
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 78
- NONE LISTED -
Debtor(s):
Ramona Hofman Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 59
- NONE LISTED -
Debtor(s):
Feliciano Julian De Vera Represented By Lawrence B Yang
Joint Debtor(s):
Pacita DelaCruz De Vera Represented By Lawrence B Yang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Norma Duenas, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 108
- NONE LISTED -
Debtor(s):
John Adam Tribue IV Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 109
- NONE LISTED -
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. John Brady, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 75
- NONE LISTED -
Debtor(s):
Eugene Alexis Padilla Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 76
- NONE LISTED -
Debtor(s):
Joe Wallace Brown Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Yolanda Denise Moore Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 80
- NONE LISTED -
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
11:01 AM
Docket 80
- NONE LISTED -
Debtor(s):
Kingpouangphet Sangasy Represented By James T Lillard
Joint Debtor(s):
Keooudone Phrakousonh Represented By James T Lillard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. John Brady, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 133
- NONE LISTED -
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 55
- NONE LISTED -
Debtor(s):
Gregorio Orozco Sotelo Represented By
Lisa F Collins-Williams
Trustee(s):
Rod Danielson (TR) Represented By
Lisa F Collins-Williams
11:01 AM
(Tele. appr. Paul Lee, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 96
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
- NONE LISTED -
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Lawrence Edmond III Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 57
- NONE LISTED -
Debtor(s):
Coralia Beltran Rivas Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Elizabeth Dean Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Jennifer Tanios, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 59
- NONE LISTED -
Debtor(s):
Richard Caraveo Jr. Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- 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
11:01 AM
Docket 93
- NONE LISTED -
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 85
- 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
11:01 AM
Docket 59
- 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 94
- NONE LISTED -
Debtor(s):
Carmen Lynn Chilson Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 104
- NONE LISTED -
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Benjamin Heston, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 112
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. William Smyth, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 69
- NONE LISTED -
Debtor(s):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Benjamin Heston, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 68
- NONE LISTED -
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Paul Lee, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 68
- NONE LISTED -
Debtor(s):
Anthony P Mendoza Represented By Paul Y Lee
Joint Debtor(s):
Lena E Mendoza Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
- NONE LISTED -
Debtor(s):
Cynthia Molina Gomez Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Donald Ray Levier Jr. Represented By
D Justin Harelik
Joint Debtor(s):
Antoinette Marie Levier Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 52
- NONE LISTED -
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Edward A Jandt Represented By Christopher Hewitt
Joint Debtor(s):
Shelley A Jandt Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 64
- NONE LISTED -
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joanne Andrew, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 39
- NONE LISTED -
Debtor(s):
Luci Denise. Green Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 76
- NONE LISTED -
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 33
- NONE LISTED -
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Jennifer Tanios, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 52
- NONE LISTED -
Debtor(s):
Florence Marie Rodriguez Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Debra Suzanne Towne Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 26
- NONE LISTED -
Debtor(s):
Nga Nguyet Nguyen Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 30
- NONE LISTED -
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Norma Duenas, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 53
- NONE LISTED -
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Jaime Cuevas, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 40
- NONE LISTED -
Debtor(s):
Ernesto Sandoval Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Sundee Teeple, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 45
- NONE LISTED -
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Jennifer Tanios, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 43
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Julie Villalobos, rep. Debtor)
(Tele. appr. Joey De Leon, rep. chapter 13 trustee)
Docket 34
- NONE LISTED -
Debtor(s):
Early Earl Nelms Sr. Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 37
- NONE LISTED -
Debtor(s):
Bernice H Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 40
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Mark Allen Beatty Represented By Jeffrey D Larkin
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
(Tele. appr. Dane Exnowski, rep. moving party, Freedom Mortgage Corporation)
(Tele. appr. Donna Travis, rep. Debtors)
Docket 30
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
11:00 AM
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA
EH
(Tele. appr. Eric Enciso, rep. moving party HSBC Bank USA)
Docket 38
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MICHAEL W. DOUGLAS AND CINDY DOUGLAS, TRUSTEES OF THE SECOND AMENDED AND RESTATED, MICHAEL W. DOUGLAS AND CINDY DOUGLAS REVOCABLE TRUST DATED APRIL 10, 2017
From: 6/16/20, 6/30/20, 7/28/20, 8/18/20, 9/1/20, 9/29/20
EH
Also #4.1
(Tele. appr. Michael Perry, rep. Debtor)
(Tele. appr. Martin Phillips, rep. moving party Michael and Cindy Douglas, trustees)
Docket 22
Service: Proper Opposition: None
On May 22, 2020, Michael W. Douglas and Cindy Douglas, Trustees of the Second Amended and Restated, Michael W. Douglas and Cindy Douglas Revocable Trust (hereinafter "Douglas’ Trust") filed this motion for relief from stay pursuant to 11
11:00 AM
U.S.C. §§ 362(d)(1) and 362(d)(2) regard to the Property located at 7419 Via Deldene, Highland, California 92346.
To attain relief from stay under 11. U.S.C §362(d)(1) "cause" must be shown. Douglas’ Trust claims that there is a lack of adequate protection of its interest in its property because of property taxes and a mechanic’s lien. Adequate protection is intended to compensate a secured creditor whose collateral declines in value while it is in the possession of, and being used by, a…debtor." People’s Capital& Leasing Corp. v. Big3d, Inc., 438 B.R. 214, 220 (B.A.P. 9th Cir. 2010).
By providing Deed of Trust and Assignment of Rent, Note, Trustee’s Sale Guarantee, and Claim of Mechanics Lien, Douglas’ Trust has shown neither is there any equity nor is its interest adequately protected. In re Gauvin, 24 B.R. 578, 580 (B.A.P. 9th Cir. 1982); See also In re Mellor, 734 F.2d 1396 (9th Cir. 1985) (equity cushion of twenty percent sufficient).
To receive relief under 11 U.S.C. § 362(d)(2), both elements— (1) debtor has no equity in the property and (2) property is not necessary for an effective organization— must be met. 3 Collier on Bankruptcy ¶ 362.07[4] (Richard Levin & Henry J. Sommer eds., 16th ed.). Douglas’ Trust has provided evidence that Debtor does not have any equity in the property.
The burden now shifts to the opposing party, the Debtor, to show that the collateral is not declining in value or the movant is adequately protected by periodic cash payments, an equity cushion, replacement liens or otherwise to overcome 11. U.S.C. § 362(d)(1). 3 Collier on Bankruptcy ¶ 362.10 (Richard Levin & Henry J. Sommer eds., 16th ed.).
The Trustee’s opposition does not address the (d)(2) request, and also points to the approximate 12% equity cushion for purposes of (d)(1), which the Court finds insufficient. Further, without evidence of valuation, there is no basis to deny the motion or continue the hearing.
Debtor responded to the motion, claiming that she is in the process of a "new loan process," will be filing an adversary proceeding, a motion to strip a lien, or both. Dkt. No. 30. Debtor also claims that Douglas’ Trust has acted in bad faith because it has
11:00 AM
interfered with Debtor’s ability to refinance by contacting potential lenders and disparaging Debtor and Debtor’s spouse. Id.
However, Debtor has not challenged the mechanics lien by adversary and otherwise does not provide grounds to deny the motion.
The tentative ruling is to GRANT the motion. APPEARANCES REQURED.
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Michael W. Douglas and Cindy Represented By Martin W. Phillips
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
[OST entered on 10/16/20] EH
Also #4
(Tele. appr. Michael Perry, rep. Debtor)
Docket 67
- NONE LISTED -
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Mumtaz Sajjad Represented By Michael R Perry
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. moving party Toyota Motor Credit Corp.)
Docket 8
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Carmen Bravo Represented By David L Nelson
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
(Tele. appr. Vincent Frounjian, rep. moving party Mechanics Bank)
Docket 11
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Elva Ivette Sabo Represented By Daniel King
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
(Re Bad Faith and Sanctions) Case Dismissed re 12(b)(6)
From: 8/18/20, 8/25/20 EH
Docket 12
- NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
Movant(s):
Ryan Estates, LLC Represented By Sevan Gorginian
11:00 AM
MOVANT: HSBC BANK USA, NATIONAL ASSOCIATION
From: 9/29/20 EH
(Tele. appr. Marjorie Johnson, rep. movant, HSBC Bank) (Tele. appr. Todd Turoci, rep. Debtor)
Docket 53
Parties to apprise the Court of the status of arrears and adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
David John Stoykovich Jr. Represented By Todd L Turoci
Joint Debtor(s):
Merlina Lynn Burton Represented By
11:00 AM
Movant(s):
Todd L Turoci
HSBC Bank USA, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK UNITED NA
From: 8/18/20, 9/29/20 EH
(Tele. appr. Marjorie Johnson, rep. movant, Bank United)
Docket 48
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Golda Y Williams Represented By Daniel King
Movant(s):
BANK UNITED N.A. Represented By Julian T Cotton Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: VW CREDIT LEASING, LTD.
EH
(Tele. appr. Austin Nagel, rep. moving party, Vokswagen)
Docket 44
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Cory LeRoi Page Represented By Kristin R Lamar
Joint Debtor(s):
Gabriella Pre Page Represented By Kristin R Lamar
11:00 AM
Movant(s):
VW Credit Leasing, Ltd. Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: A-L FINANCIAL CORP
From: 9/29/20 EH
Docket 43
- NONE LISTED -
Debtor(s):
Adam Brian Britt Represented By Matthew D. Resnik
Joint Debtor(s):
Kenya Lashawn Britt Represented By Matthew D. Resnik
Movant(s):
A-L Financial Corp. Represented By Lincoln D Gardner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
(Tele. appr. Christina Khil, rep. moving party Lakeview Loan Servicing)
Docket 32
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
Here, Debtor had a previous Chapter 13 case dismissed on October 18, 2019, less than one year before the instant case was filed on November 10, 2019. Debtor’s motion to continue the automatic stay having been denied pursuant to order entered December
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27, 2019, the automatic stay expired on December 10, 2019. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Movant(s):
Lakeview Loan Servicing, LLC, and Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
92346-3827
MOVANT: FREEDOM MORTGAGE CORPORATION
CASE DISMISSED 10/15/20
EH
(Tele. appr. Dane Exnowski, rep. moving party Freedom Mortgage Corporation
(Tele. appr. Sundee Teeple, rep. Debtor)
Docket 48
- NONE LISTED -
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: REDWOOD HOLDINGS, LLC
CASE DISMISSED 9/21/20
EH
(Tele. appr. Elaine Yang, rep. creditor, Redwood Holdings, LLC)
Docket 7
Debtor’s bankruptcy case was dismissed on September 21, 2020. Pursuant to 11
U.S.C. § 362(c)(1) & (2) the automatic stay has terminated in its entirety. As a result, the Court is inclined to DENY the request under ¶ 2 as moot.
The Court is inclined to DENY the request under ¶ 7 for lack of cause shown. Specifically, the Court notes that it considers ¶ 7 an extraordinary remedy that is only appropriate in cases where a writ of possession has already been issued.
The Court is inclined to DENY the request for relief under 11 U.S.C. § 362(d)(4) because that section requires either an unauthorized transfer of an interest in the property or multiple bankruptcy cases affecting the property. Here, Movant has not alleged either.
The Court does agree that some prospective relief is warranted, given that Debtor filed
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a pro se non-individual Chapter 7 case a day after a foreclosure sale was held, and Debtor’s case was summarily dismissed. Based upon Debtor’s non-compliance with basic duties of a party in bankruptcy, and based on the timing of the commencement of the instant case, the Court is inclined to GRANT the request under ¶ 9B and DENY the lesser remedy under ¶ 11. The Court is inclined to DENY the request under ¶ 10 for lack of cause shown, given that the relief under ¶ 9B appears adequate to afford Movant protection.
Finally, the Court is inclined to WAIVE the Rule 4001(a)(3) stay and DENY the request under ¶ 13 on the basis that it does not appear any further relief is requested.
APPEARANCES REQUIRED.
Debtor(s):
Kmog LLC Pro Se
Movant(s):
Redwood Holdings, LLC Represented By Elaine Yang
Trustee(s):
Steven M Speier (TR) Pro Se
12:00 PM
Docket 0
- NONE LISTED -
Debtor(s):
Graciela Romo Oyarzabal Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
EH
(Tele. appr. Anthony Friedman, rep. Interested party, The H.N. and Frances
Berger Foundation)
(Tele. appr. David Golubchik, rep. H.N. & Frances C. Berger Foundation) (Tele. David Goodrich, rep. Debtor)
(Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jolene Tanner, rep. creditor, United States of America)
Docket 766
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. Debtor’s disclosure statement was approved pursuant to order entered September 17, 2020. A hearing on the confirmation of Debtor’s first amended Chapter 11 plan is currently set for November 17, 2020.
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On June 9, 2020, Debtor filed a sale motion proposing to sell substantially all of its assets. Pursuant to order entered July 16, 2020, the proposed sale was approved. The sale generated gross proceeds of $7,200,000 with net sale proceeds totaling
$6,822,450. On August 21, 2020, Debtor filed a motion to approve a compromise with The Travelers Companies, Inc. ("Travelers"). That compromise motion was approved by order entered September 30, 2020, and resulted in $1,575,000 held by Travelers being returned to the bankruptcy estate.
Three motions were subsequently filed that were related to the distribution of funds held by Debtor. First, on August 31, 2019, Debtor filed a motion to approve a compromise with The H.N. and Frances C. Berger Foundation ("Berger"). This motion sought to resolve the secured and unsecured portion of Berger’s claim for attorney fees incurred through February 29, 2020. The motion proposed to fix the secured portion of the attorney fees at $212,750. On September 14, 2020, the IRS filed a limited opposition to the motion. Debtor appears to have inadvertently not set the matter for hearing, and no further action has been taken on this motion.
Second, on September 3, 2020, Berger filed a motion for release of funds from sale proceeds and payment to secured creditor on account of secured claim. This motion sought the payment of $4,730,202.11 (plus interest) to Berger on account of Berger’s lien against Debtor’s assets. Both Berger and Debtor have referred to the limited opposition filed by the IRS and mentioned in the preceding paragraph as having been related to this motion, although the limited opposition did not formally oppose Berger’s motion. After an initial hearing held on September 29, 2020, the Court continued the matter to October 27, 2020.
Third, on September 8, 2020, Debtor filed a motion to approve a compromise with Simione Healthcare Consultants, LLC ("Simione"). Pursuant to the compromise with Simione, Simione would be allowed a secured claim in the amount of $2,437,549.70. From that secured claim, Simione would be paid $1,050,000 within three days of the entry of the order approving the compromise, and the remainder of the lien would be avoided and preserved for the benefit of the estate. The IRS filed an opposition this compromise motion on September 15, 2020. After an initial hearing held on
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September 29, 2020, the Court continued the matter to October 27, 2020.
On October 6, 2020, Debtor filed the instant compromise motion with the IRS. The salient terms of the compromise motion are summarized as follows:
The IRS is to withdraw its objection to Debtor’s motions to approve compromises with Berger and Simione;
Debtor may pay Berger the entirety of its secured claim in accordance with the terms set forth in the motion to approve compromise with Berger;
Debtor may pay Simione the $1,050,000 contemplated in the motion to approve compromise with Simione;
Debtor may pay the IRS $1,600,000;
After allowance of professional fees, Debtor may pay professionals $750,000;
As to the sale proceeds and the funds recovered from Travelers, the Simione lien that is proposed to be avoided and recovered for the benefit of the bankruptcy estate is subordinated to $1,600,000 of the IRS lien;
As to all other assets, the Simione lien that is proposed to be avoided and recovered for the benefit of the bankruptcy estate is subordinated to the IRS lien; and
"Upon payment of the IRS’ secured claim in full, including any accrued interest, from any source, the Debtor may pay its professionals on their allowed claims from the Reserve Funds without further notice or order of the Bankruptcy Court."
Procedurally, the Court notes that there are certain procedural problems with the terms summarized on pages six through nine of the motion. First, as noted earlier, the motion to approve compromise with Berger was never actually set for hearing and is technically not before the Court at this time. Second, paragraph 6 of Debtor’s summary of the salient terms [Dkt. No. 766, pg. 7], provides: "Upon approval of this
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Agreement by the Bankruptcy Court and an order of the Bankruptcy Court granting the Simione Motion, the Debtor may pay the IRS $1,600,000 from the sale proceeds and the Travelers recovery. This payment shall be made within 16 days of the order on this Agreement." But paragraph 2 of the salient terms provides that "[t]he Debtor and the IRS shall agree to a continuance of the hearing on the Simione Motion for approximately 30 days." Logically, the combination of the those two provisions would require any approval of the instant motion to be delayed, at a minimum, fourteen days.
Pursuant to 11 U.S.C. § 1107(a), Debtor has all the rights and duties of a trustee. 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 (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:
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.
Id.
The bankruptcy court enjoys broad discretion in approving a compromise because it "is uniquely situated to consider the equities and reasonableness." 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
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amply considered the various factors that determined the reasonableness of the compromise, the court's decision must be affirmed.
Id. (citations omitted).
For the reasons stated in the motion, noting service was proper and that the Court has not received any opposition, the Court is inclined to find that Debtor has satisfied the A&C Properties factors. Specifically, the Court notes that the complexity of the legal dispute and the delay that would be caused by litigation cause the first, third, and fourth factors to weigh in favor of the settlement proposed.
The Court does have some concerns that the arrangements proposed constitute an impermissible sub rosa plan. While there is not a universal, clear definition of what constitutes an impermissible sub rosa plan, a sale or settlement that has the effect of disposing of or resolving all or substantially all of a debtor’s assets or liabilities, which would appear to be the case here, may be considered a sub rosa plan. See, e.g., In re Cajun Elec. Power Coop., 119 F.3d 349, 355 (5th Cir. 1997). This concern is amplified by the fact that Debtor has already filed a Chapter 11 plan and the confirmation hearing is merely three weeks away, yet the series of arrangements reached with the secured creditors will determine the most significant rights and obligations of the Debtor and the primary creditors outside of that plan process. See generally In re Cont'l Air Lines, Inc., 780 F.2d 1223, 1226 (5th Cir. 1986) ("Section 363 does not authorize a debtor and the bankruptcy court ‘to short circuit the requirements of a reorganization plan by establishing the terms of the plan sub rosa in connection’ with a proposed transaction."); see also In re Braniff Airways, Inc., 700 F.2d 935, 940 (5th Cir. 1983) ("The debtor and the Bankruptcy Court should not be able to short circuit the requirements of Chapter 11 for confirmation of a reorganization plan by establishing the terms of the plan sub rosa in connection with a sale of assets."). Finally, the settlements reached with the IRS and Simione, which relate to not only the respective priorities of the secured creditors’ liens, but impact the extent/validity of those liens and their relationship to a lien held by Debtors that would inure to the benefit of administrative claimants and/or unsecured creditors, would have indirect consequences for the entirety of the creditor body.
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 9/29/20 EH
(Tele. appr. Anthony Friedman, rep. Interested party, The H.N. and Frances
C. Berger Foundation)
(Tele. appr. David Golubchik, rep. H.N. & Frances C. Berger Foundation) (Tele. David Goodrich, rep. Debtor)
(Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jolene Tanner, rep. creditor, United States of America)
Docket 724
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich
2:00 PM
Movant(s):
Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 9/29/20 EH
(Tele. appr. Anthony Friedman, rep. Interested party, The H.N. and Frances
C. Berger Foundation)
(Tele. appr. David Golubchik, rep. H.N. & Frances C. Berger Foundation) (Tele. David Goodrich, rep. Debtor)
(Tele. appr. Sean O'Keefe, rep. creditor, Simione HealthCare Consultants) (Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jolene Tanner, rep. creditor, United States of America)
Docket 720
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner
2:00 PM
Movant(s):
Jason B Komorsky
The H. N. and Frances C. Berger Represented By
David B Golubchik Anthony A Friedman
2:00 PM
Adv#: 6:20-01138 Barghi v. Dimlux, LLC.
EH
Docket 1
- NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury
Defendant(s):
Dimlux, LLC. Pro Se
Plaintiff(s):
Mansour Hossein Barghi Represented By Fari B Nejadpour
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
(Tele. appr. Richard Marshack, rep. trustee Karl T. Anderson)
Docket 40
Service: Proper Opposition: None
On September 2, 2020, Trustee filed an application for compensation requesting
$10,174.18. This amount was based on $138,483.59 in "total disbursements." Of these disbursements, $103,483.59 in administrative expenses that were already paid by the settlement administrator from the litigation settlement were included. (See Dkt. 32, ¶¶ 4-6).
At the hearing on October 7, 2020, the Court determined that Trustee’s compensation base should be reduced to $35,000 to exclude the $103,483.59 as these amounts were at no time administered, held, received, or disbursed by Trustee pursuant to 11 U.S.C.
§ 326(a). Trustee asserted that the case, Blair v. Statton (In re Blair), 329 B.R. 358 (Bankr. App. 9th Cir. 2005) supported his compensation request. The Court ordered supplement briefing on the matter.
On October 21, 2020, Trustee filed his supplemental brief arguing that BAP’s holding in Blair applies to Trustee’s compensation request, as the escrow agent there is
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"analogous" to the settlement agent here. See Dkt. No. 46, pg. 5 ("Instead this case is analogous to a sale of a debtor’s real property, where a third-party, such as a title insurance company or an escrow agent, disburses funds pursuant to the Trustee’s direct authorization."). We thus consider the applicability of In re Blair to Trustee’s request and its effect on 11 U.S.C. § 326(a).
The issue is whether Trustee can include administrative fees in a litigation settlement that were disbursed by a settlement administrator in the calculation of his compensation base.
11 U.S.C. § 326(a) governs Trustee compensation:
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 points to in Blair in support of his position that a settlement administrator distributing funds from a litigation settlement is like an escrow agent selling real property of the estate on behalf of the Trustee. The Blair court held that allowing a trustee’s compensation base to include funds disbursed by an escrow agent to secured creditors from a sale of real property did not violate the plain meaning of § 326(a). In re Blair, 329 B.R. 358 at *3. In reaching its conclusion the Blair court noted that agency law applied:
While § 326(a) provides that a trustee's compensation is based on amounts disbursed "by the trustee[,]" allowing the fee base to include funds distributed
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to the secured creditors through the escrow process is not inconsistent with the plain meaning of § 326(a), because the escrow handler was acting as the trustee's agent and following the trustee's instructions when it distributed funds to the secured creditors. Therefore, in a legal sense, the distributions were made by the trustee.
An escrow holder is an agent ... of the parties to the escrow. An agent is one who is authorized to act for or in the place of another; a representative. A court should presume that Congress legislates against the backdrop of established principles of state and federal common law, and that when it wishes to deviate from deeply rooted principles, it will say so.
There is no indication that Congress intended to override well-established principles of agency law when it enacted § 326(a). To the contrary, the legislative history indicates that Congress intended that a trustee be compensated for liquidating secured property:
It should be noted that the bases (sic) on which the maximum fee is computed includes moneys turned over to secured creditors, to cover the situation where the trustee liquidates property subject to a lien and distributes the proceeds.
Id. (internal quotations and citations omitted). Agency principals applied because the bankruptcy court had "expressly approved the use of an escrow holder and its role in distributing the sale proceeds to secured creditors" when it entered the order approving sale of the properties. Id. at 2.
By contrast, the court in Moreno rejected a trustee’s application for compensation which included monies disbursed by a settlement agent, stating:
In calculating the aggregate amount of disbursements upon which her fee application is predicated, Ms. Dzikowski has included funds which in actuality were disbursed by one George Hough, Jr., P.A., who acted as the settlement agent on the sale of a parcel of real property located at 909 West Midway Road, Fort Pierce, Florida. Pursuant to this Court's July 9, 2002 order, Ms.
Dzikowski was authorized to sell the referenced property for $77,000. At no
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time during the administration of this estate was Mr. Hough, Jr. authorized to represent Ms. Dzikowski, or to act as her agent.
Ms. Dzikowski's fee application is predicated, in part, upon her position that she, in effect, disbursed the funds which were paid by Mr. Hough in conjunction with the real estate closing, thereby enabling her to seek compensation based upon the funds paid by Mr. Hough. However, such an interpretation of the term "monies disbursed or turned over...by a trustee" as used in Section 326 of the Bankruptcy Code is at odds with established case authority.
In re Moreno, 295 B.R. 402, 403 (Bankr. S.D. Fla. 2003) (emphasis added) (internal citations omitted).
Moreover, the court in Carter appears to have gone so far as to expressly refuse Trustee compensation based on proceeds derived from the sale of real property closed through escrow agents. The court stated:
A component of the aggregate amount of gross receipts purportedly administered by the Trustee ($53,772.15) is an amount equal to $33,800.00, ostensibly representing the proceeds derived from the Trustee's sales of two parcels of real property, which sales were authorized by the Court by way of orders entered on July 15, 2003 (C.P. 50 and 51). However, the sales of both parcels were closed through escrow agents, and the net amount of proceeds actually received by the Trustee equals $19,618.29. Nonetheless, the Trustee's fee application is computed on the basis that he disbursed a total of $33,800.00 deriving from his sale of the two real estate parcels. In actuality, the total amount of disbursements by the Trustee equals $39,590.44, and not
$53,722.15. Thus, based upon the formula prescribed by 11 U.S.C. § 326, the maximum allowable compensation to the Trustee equals $4,709.04.
In re Carter, 326 B.R. 892, 893 (Bankr. S.D. Fla. 2005). The court did not clarify whether the escrow agents had been court approved.
No matter, the crucial difference between Blair and Moreno is that in Blair the escrow
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agent was approved by the court, and in Moreno the settlement agent was not. Here, the Court never issued an order approving special counsel or the settlement administrator. Accordingly, the settlement administrator cannot be analogous to the escrow agent in Blair and is more like the settlement agent in Moreno.
Generally, agency principles apply to escrow agents in real property sales because the Trustee "controls" the escrow agent through an order by the court approving the application to employ the escrow agent. In contrast, Trustee cannot control the settlement administrator. The fact that Trustee is authorized to consent to payment of the attorney and instruct the settlement administrator to pay out administrative expenses does not equate to "control" for agency purposes. Even if the Court was inclined to find Trustee "constructively" paid special counsel, counsel was not employed by the Trustee, and thus the Court would not be able to authorize such payment.
In light of the foregoing, the Court is inclined to uphold its previous tentative ruling and reduce the basis upon which Trustee’s statutory fee is calculated, eliminating those amounts that were at no time administered, held, received, or disbursed by Trustee. The remaining amount actually received and proposed to be distributed by Trustee is $35,000. With this amount as the basis for Trustee’s fee, the Court is inclined to reduce the Trustee’s fees and APPROVE the administrative expenses as follows:
Trustee Fees: $4,250. Trustee Expenses: $116.58
APPEARANCES REQUIRED.
Debtor(s):
Gary M Fox Represented By
Gary J Holt
Joint Debtor(s):
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Maria T Fox Represented By
Gary J Holt
Trustee(s):
Karl T Anderson (TR) Represented By Richard A Marshack Laila Masud
11:00 AM
EH
(Tele. appr. Michael Jones, rep. Debtor) (Tele. appr. John Pringle, chapter 7 trustee)
Docket 143
10/28/2020
Service: Proper Opposition: None
As Debtor failed to provide Trustee with proof of insurance, the Court is inclined to GRANT Trustee’s motion pursuant to LBR 2016-2(b) and APPROVE administrative expenses in an amount of approximately $1,964.61 sufficient to pay the insurance premium.
APPEARANCES WAIVED. Movant to lodge order within seven days.
Debtor(s):
Donald Sutcliffe Pro Se
Movant(s):
John P Pringle (TR) Represented By
D Edward Hays David Wood
11:00 AM
Trustee(s):
Tinho Mang
John P Pringle (TR) Represented By
D Edward Hays David Wood Tinho Mang
11:00 AM
EH
Docket 58
10/28/2020
Service: Proper Opposition: None
Timothy Mark and Esmeralda Aitken ("Debtors") filed a Chapter 7 voluntary petition on January 1, 2019. The first meeting of the creditors took place on January 23, 2019. On May 1, 2019, Debtors filed amended schedules A/B and C claiming an exemption in the equity of real property they had transferred in 2017 located at 6919 Elmwood Road, San Bernardino, CA in the amount of $28,000.
On February 28, 2020, Trustee filed a motion to extend the time to object to Debtors’ exemptions, specifically with respect to the real property exemption. In the motion, Trustee provided a copy of the closing statement from the sale of the property, which contained the line item, "Gift of Equity" in the amount of $29,310. Trustee asserted he had reason to believe this Gift of Equity was fraudulent and accordingly would be filing an adversary complaint. On March 3, 2020, Trustee filed his complaint, adversary case 6:20-ap-01022. On April 1, 2020, this Court granted Trustees motion to extend the objection deadline.
On September 30, 2020, Trustee filed the instant motion, again requesting to extend the deadline to object to Debtors’ exemption. Trustee explains that he cannot yet object to the Gift of Equity until the adversary proceeding is resolved. Currently, Trustee has filed a revised motion for default judgment for a determination that the
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Gift of Equity is fraudulent. The status conference on the matter is scheduled for December 2, 2020. Trustee asserts this is cause to extend the objection deadline for 120 days, up to and including February 3, 2021.
Fed. R. Bankr. P. 4003(b)(1) provides:
Objecting to a claim of exemptions
Except as provided in paragraphs (2) and (3), a party in interest may file an objection to the list of property claimed as exempt within 30 days after the meeting of creditors held under § 341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. The court may, for cause, extend the time for filing objections if, before the time to object expires, a party in interest files a request for an extension.
(emphasis added).
Here, Trustee has filed his motion to extend the objection deadline within the time period to object before October 3, 2020. Trustee cannot effectively object to the Gift of Equity transfer without a determination in the adversary case. The Court, having yet to rule on the adversary matter, finds that Trustee has shown cause to extend the objection deadline exists.
The Court, finding cause exists, is inclined to extend the deadline to object to exemptions until and including February 3, 2021.
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):
Timothy Mark Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Howard B Grobstein (TR) Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
11:00 AM
EH
(Tele. appr. Arturo Cisneros, chapter 7 trustee)
Docket 56
10/28/2020
Service: Proper Opposition: None
On January 21, 2020, Henry R. Huizar, Jr. and Sara Huizar ("Debtors") filed a Chapter 7 voluntary petition. On January 28, 2020, Mr. Huizar passed away leaving a will bequeathing all of his belongings and management of his financial affairs, including his interest in certain real property located at 16161 San Jacinto, Fontana, CA 92336 (the "Property"), to Mrs. Huizar. The Property interest was listed in Schedule A with a value of $440,000. Trustee obtained a higher valuation for the property in the amount of $490,000. Accordingly, he suggested amending Schedule C to claim a homestead exemption up to the maximum. On May 13, 2020, Schedule C was amended to purport an exemption in the Property in the amount of $175,000.
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This amount was approved as Mr. Huizar was seventy-one years old as of the date of the petition. Schedule D identified one creditor holding a security interest in the Property: Flagstar Bank (in the amount of $303,797.06). Mrs. Huizar has been unable to make mortgage payments and is over six months in arrears on the Property. Mrs.
Huizar requested that Trustee sell the Property so she could move to a property she has an interest in in Costa Rica
On February 16, 2020, the Court approved a compromise between Debtors and Trustee which provided, inter alia, that 75% of the net proceeds of the sale of Property up to the claimed homestead exemption would be distributed to Mrs. Huzier, and 25% of the proceeds would go to the Estate in an exchange for the Trustee to abandon Mrs. Huzier’s vehicle and the Costa Rica property. The 25% would be sufficient to pay unsecured claims in the amount of $14,692.78. On September 22, 2020, the Court approved the employment of Americo Peralta of John B. Spear Firm as real estate broker and a proposed sales commission in the amount of 6%.
On October 5, 2020, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Andre and Jessica Curayag (the "Purchasers") for $515,000, $4,000 above the Purchasers’ submitted offer. Previously, Trustee had accepted two offers within this price range, both of which were withdrawn. Proposed payments from the sale proceeds include: (1) $30,900 for real estate commission; (2) $10,300 for other closing costs; (3) $304,000 for the secured claim of Flagstar Bank; and (4) $127,350 for Debtors’ exemption, leaving $42,450 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,
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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 evidence of the Property’s marketing, which the Court deems sufficient to establish the reasonableness of the sale. Specifically, the Court notes that Trustee employed a real estate broker to begin marketing the Property in September 2020, and obtained a sale price slightly above the value of the Property scheduled by Debtors.
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 sale price exceeds the aggregate value of the liens encumbering 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).
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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% in the amount of $30,900 and finds such compensation to be reasonable in the circumstances.
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 subject to any overbids being received.
APPEARANCES REQUIRED.
Debtor(s):
Henry R. Huizar Jr Represented By Stephen K Moran
Joint Debtor(s):
Sara Huizar Represented By
Stephen K Moran
Movant(s):
Arturo Cisneros (TR) Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
(Tele. appr. Benjamin Heston, rep. Debtors)
Docket 30
10/28/2020
On March 17, 2020, Gary & Alicia Chavez ("Debtors") filed a Chapter 7 voluntary petition. Among the assets of the estate is a 2006 Chevrolet Trailblazer LS Extended (the "Property"). 800 Loanmart and Speedy Cash ("Creditors") hold security interests in the Property.
On June 22, 2020, Debtors filed a motion to redeem the Property at a value of $1,569. The Court denied their motion on August 31, 2020 because the valuation method utilized did not meet the requirements of 11 U.S.C. § 506(a)(2).
On September 14, 2020, Debtors filed the instant motion to redeem Property. Debtors contend the redemption value of the Property should be $1,258. Because the Property has minor interior, paint, and body damage, Debtors have selected the mid-point between the low-end fair market range of $2,994 and the fair purchase price of $4,256 from the Kelly Blue Book to arrive at a value of $3,625, where the typical listing price is $4,656. Debtors further reduce the value of the Property by $1,656.17 based on "in- house" repair estimates and by 19.6% due to the amount of mileage based on the Kelly Blue Book private-party value. The Court notes the requested redemption value is $311 less than the value Debtors submitted in its previous motion.
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11 U.S.C. § 722 provides:
An individual debtor may, whether or not the debtor has waived the right to redeem under this section, redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempted under section 522 of this title or has been abandoned under section 554 of this title, by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien in full at the time of redemption.
11 U.S.C. § 506(a)(2) provides the applicable valuation standard:
If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition without deduction for costs of sale or marketing. With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined.
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 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.
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Here, Debtors value the Property using a lower than average fair purchase price of $3,625, an amount $1,031 less than the typical listing price of $4,656. Debtors contend their selection is on the lower end due to the damage on the Property. Accordingly, the value of $3,625 presumably already accounts for the damage. However, Debtors reduce the price even further by $1,656.17 based on an estimate for the cost of repairs. The correct starting point is
$4,656, as the price a retail merchant would charge. This amount may then be adjusted for repairs. However, the estimate for repairs is illegible.
Debtors have also utilized the Kelly Blue Book private-party range to estimate the reduction in the value due to the mileage. As the Court previously stated, private-party price ranges are unacceptable valuation methods; the Kelly Blue Book retail values can also be adjusted for mileage, and moreover the Court presumes the mileage is encompassed within the Kelly Blue Book range of retail values.
Based on the evidence the Court may consider, the Court is inclined to value the redemption at $2,999.83 based on the price a retail merchant would charge less the estimated cost of repairs.
The Court is inclined to GRANT the motion to redeem property for no less than the amount of $2,999.83.
APPEARANCES REQUIRED.
Debtor(s):
Gary A. Chavez Represented By Benjamin R Heston
Joint Debtor(s):
Alicia A. Chavez Represented By Benjamin R Heston
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
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, 9/26/18, 1/23/19, 3/27/19, 6/26/19, 10/16/19, 1/15/20, 4/8/20, 4/29/20, 7/1/20, 9/2/20, 9/28/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
Defendant(s):
Sterling Security Service, Inc. Pro Se
Natalia V Knoch Pro Se
Steven B Knoch Pro Se
Stacy Winn Represented By
2:00 PM
Douglas A Plazak
Ralph Winn Represented By
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#: 6:18-01138 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)
(AS TO CONESTOGA)
From: 2/12/20, 4/29/20, 10/28/20 Also #8
EH
Docket 1
- NONE LISTED -
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
2:00 PM
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
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
Rafael R Garcia-Salgado
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
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)
(AS TO REMAINING DEFENDANTS)
(Jeff Converse - dismissed 12/2/19)
(Provident Trust Group LLC - dismissed 12/17/19) (De Loeon & Washburn, P.C. - dismissed 1/8/20) (Thomas Washburn - dismissed 1/8/20)
(Hector De Leon - dismissed 1/8/20)
From: 8/29/18, 11/28/18, 1/9/19, 4/10/19, 11/6/19, 2/12/20, 2/19/20, 4/29/20
Also #7 EH
Docket 1
- NONE LISTED -
2:00 PM
Debtor(s):
John E. Tackett Represented By Stefan R Pancer
Defendant(s):
Conestoga Settlement Services, LLC Represented By
Charles Miller
Conestoga International Holdings, Represented By
Charles Miller
Conestoga Trust Represented By Charles Miller
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
Rafael R Garcia-Salgado
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
EH
(Tele. app. Julian Bach, rep. Defendants) (Tele. appr. Laila Masud, rep. Plaintiffs)
Docket 1
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Defendant(s):
Gabriela Nieto Diaz Pro Se
Laguna Motors, Inc. Represented By Julian K Bach
Plaintiff(s):
Cleo Sonnenfeld Represented By
2:00 PM
Trustee(s):
Laila Masud
D Edward Hays
Todd A. Frealy (TR) Represented By Anthony A Friedman
2:00 PM
Adv#: 6:20-01047 Karl T. Anderson, Chapter 7 Trustee v. Olaya et al
From: 7/1/20 EH
(Tele. appr. Misty Perry-Issacson, rep. trustee, Karl T. Anderson)
Docket 1
- NONE LISTED -
Debtor(s):
Karin Olaya Represented By
Edward T Weber
Defendant(s):
Karin Giselle Olaya Represented By Edward T Weber
Rosemary Franco Pro Se
Frank Howard Eggleston Pro Se
Plaintiff(s):
Karl T. Anderson, Chapter 7 Trustee Represented By
2:00 PM
Trustee(s):
Misty A Perry Isaacson
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 12/11/19, 5/20/20, 7/1/20, 9/30/20 Also #12
EH
(Tele. appr. Thomas Polis, rep. Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
Also #11 EH
Docket 18
Between May 2015 and May 2017, Nathaniel James Cardiel ("Cardiel") was employed by O’Gara Coach Company, LLC ("OGCC") at its Beverly Hills, California dealership. OGCC is in the business of selling new and used high-end luxury automobiles. Between April 2017 and February 2018, Cardiel stole a 2009 Rolls- Royce Phantom Coupe ("2009 Rolls-Royce"), and a 2016 McLaren 675 LT ("2016 McLaren").
On February 9, 2018, the Beverly Hills Police Department located the two vehicles at Cardiel’s residence. On April 10, 2018, Cardiel was charged criminally in the Los Angeles Superior Court for the theft of the two vehicles. On November 13, 2018, Cardiel entered into a felony plea agreement in Los Angeles Superior Court whereby Cardiel agreed to pay $105,000.00 restitution.
On April 24, 2018, OGCC separately filed a complaint against Cardiel among others in Riverside Superior Court.
On March 1, 2019, OGCC’s state court counsel deposed Cardiel wherein Cardiel admitted that he stole the two cars from OGCC and revealed that he was consulting with some lawyers about bankruptcy. Specifically, from the excerpt of the deposition, in page 58, lines 23-25, in response to the question, "You stole the car?" Cardiel replied, "I did." In page 81, lines 5-12, in response to the questions, "So you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you
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like. You use bolt cutters that you bought the day before to cut the lock on the gate? You open the gate and then you drive the car off the lot", Cardiel replied "Correct." In page 75, lines 15-21, in response to the question, "did you go to the dealership with the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In page 124, lines 14-20, Cardiel revealed, "I had no way of paying my credit card companies…actually right now I’m consulting some lawyers about bankruptcy. So I’m not in a good place credit-wise, as you probably saw by my credit report."
OGCC’s case filed in Riverside Superior Court is now pending.
On March 20, 2019, Cardiel filed a Chapter 7 bankruptcy without counsel. Cardiel failed to fully disclose his prepetition financial status in the schedules. Specifically, Cardiel did not disclose 1) OGCC’s pending litigation against him; 2) the pending Los Angeles Superior Court Criminal Action against him and the corresponding
$105,000.00 restitution and his plea agreement; 3) Cardiel’s ownership interest in the corporate entity, Day Dream Drive; 4) bank accounts maintained at California Coast Credit Union; and 5) 2017 Financial Statement submitted to California Coast Credit Union.
On July 1, 2019, Cardiel received his Chapter 7 discharge and on July 2, 2019 Cardiel’s Chapter 7 bankruptcy case was closed.
On or about August 23, 2019, OGCC allegedly became aware of Cardiel’s Chapter 7 case and moved to reopen the case. On September 17, 2019, Cardiel’s Chapter 7 Bankruptcy Case was reopened.
On October 4, 2019, OGCC filed a complaint to commence adversary proceeding in this Court, alleging that Cardiel’s discharge should be revoked under 11 U.S.C § 727(a) and OGCC’s claim should be determined to be non-dischargeable under 11
U.S.C §523(a)(2) and §523(a)(6). On December 2, 2019, Cardiel filed an answer to the complaint.
On May 14, 2020, OGCC filed a motion for summary judgment, arguing there were no disputed material facts and that Cardiel’s discharge should be revoked under 11 U.S.C §727(d), and that OGCC’s claim should be determined to be non- dischargeable under 11 U.S.C §523(a)(6).
Specifically, for the claim under §727(d), OGCC argues that Cardiel’s omission of
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contained information noted above from his schedules suffices the requirement under
§727(d) given that 1) OGCC’s alleged entitlement to over $100,000 restitution is material because it constitutes over 60% of Cardiel’s total claims, and 2) Cardiel’s omission was knowingly made as Cardiel filed the bankruptcy only three weeks after his March deposition along with his recent state court criminal charge.
As to the claim under §523(a)(6), OGCC alleges that Cardiel’s acts were willful and malicious because Cardiel had the motive to inflict injury by stealing and concealing the cars as evidenced by the March deposition, and that caused economic injury totaling $551,295.82.
According to OGCC’s damage calculation formula, with respect to the 2009 Rolls-Royce, the loss of use is $5,000.00; the loss in value re disclose theft to subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (10,992 miles at $2.50 per mile) is $27,480.00; restore vehicle to factory standards is $36,332.46; the subtotal is $103,812.46. As to the 2016 McLaren, the loss in value re having to disclose the theft to a subsequent buyer is $35,000.00; diminished value of vehicle due to mileage incurred by Cardiel (100 miles at $2.50 per mile) is $250; the subtotal is $35,250.00. The whole amount of car damages is then further trebled pursuant to California Penal Code §496. In addition, the attorney fee, which should also be included to the total amount pursuant to §496, would be
$134,108.44.
On June 17, 2020, Cardiel filed an opposition to motion for summary judgment along with his evidentiary objections to the declaration of Juan Hernandez. In the opposition, Cardiel primarily raises disputes regarding damages calculation and amount of the damages in each category. On June 24, OGCC filed a reply to the opposition, arguing that Juan Hernandez, working as a corporate controller at OGCC, is capable to provide reliable amount of damages. In addition, OGCC also filed an evidentiary objection to the declaration of Nathaniel James Cardiel.
As a preliminary matter, the Court evaluates the evidentiary objections submitted by both parties.
First, as to the evidentiary objections by Defendant Cardiel to Juan Hernandez
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declaration, the Court:
OVERRULES the evidentiary objection as to ¶ 7 based on hearsay. Defendant assumes, but it is not clear from the declaration, that amounts are reflected in a business record.
SUSTAINS the evidentiary objection as to ¶ 7 based on lack of foundation.
There is no foundation provided for Declarant’s expertise to assess the damages, or for the damage amounts themselves.
The Court does not address remainder of Cardiel’s evidentiary objections as premature pending resolution of section 496 issues.
OGCC made the evidentiary objections to the declaration of Nathaniel James Cardiel. The Court:
OVERRULES objection based on lack of personal knowledge. Perhaps an appropriate objection would be improper legal argument, or lack of foundation, but Declarant is NOT testifying as to what Plaintiff believed (note, Plaintiff is not a person). Declarant is instead testifying as to what Declarant believes.
OVERRULES objection based on Expert Witness. Declarant is not testifying as an expert as to any alleged fact. An appropriate objection would be improper legal argument.
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. Fed. R. Civ. P. 56(c) (made applicable to adversary proceedings by Fed. R. Bankr. P. 7056).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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. Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All
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reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Section 523(a)(6) provides that: "(a) A discharge under 727 ... of this title does not discharge an individual debtor from any debt - ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity." Whether a particular debt is for willful and malicious injury by the debtor to another or the property of another under § 523(a)(6) requires application of a two-pronged test to the conduct giving rise to the injury. In other words, the creditor must prove that the debtor's conduct in causing the injuries was both willful and malicious. Barboza v.
New Form, Inc. (In re Barboza), 545 F.3d 702,711 (9th Cir. 2008) (citing Carrillo v. Su (In re Su), 290 F.3d 1140, 1146–47 (9th Cir. 2002) and requiring the application of a separate analysis of each prong of "willful" and "malicious").
To show that a debtor's conduct is willful requires proof that the debtor deliberately or
intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Kawaauhau v. Geiger, 523 U.S. 57, 60–61 (1998); Carrillo v. Su (In re Su), 290 F.3d 1140, 1143 (9th Cir. 2002). The debtor must act with a subjective motive to inflict injury, or with a belief that injury is substantially certain to result from the conduct. In re Su, 290 F.3d at 1143. The court may consider circumstantial evidence that may establish what the debtor actually knew when conducting the injury creating action and not just what the debtor admitted
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to knowing. In re Ormsby, 591 F. 3d at 1206 (9th Cir. 2010). Conversion is not per se a willful and malicious injury; it establishes only the wrongful assertion of dominion over another’s personal property. Peklar v. Ikerd (In re Peklar), 260 F.3d 1035, 1037 (9th Cir.2001). See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1206 (9th Cir. 2001) (for liability under § 523(a)(6), plaintiff must prove debtor acted willfully and inflicted injury willfully and maliciously rather than recklessly or negligently.) The court must determine whether Cardiel’s acts meet the willful and malicious requirement under §523(a)(6).
As to the willfulness, OGCC asserts that Cardiel affirmatively admitted no less than five times in his March 2019 deposition testimony (three weeks before his March 20, 2019 Chapter bankruptcy filing) that he most certainly intended to steal the 2009 Rolls-Royce and the 2016 McLaren. Specifically, Cardiel admitted that he intentionally stole the car. In response to the question, "did you go to the dealership with the intent to take a particular car or just take whatever car was available," Cardiel replied, "to take whatever car that I could find or whichever one out the group of keys I get to pick which one, you know, suits my fancy..." In response to the question, "so you show up on the day you steal the McLaren. You jump the fence. You find a car that’s open that has a bunch of keys in the glove box. You look at the keys. You find a brand that you like. You use bolt cutters that you bought the day before to cut the lock on the gate? You open the gate and then you drive the car off the lot", Cardiel replied "Correct."
Here, it is clear from these quoted parts of deposition that Cardiel intended the acts to steal the vehicles from OGCC. These were not negligent or reckless acts as Cardiel prepared to perform the theft and bought the bolt cutters in advance to achieve his plan. The series of purposeful and deliberate acts for stealing, along with later possession of the car over a period of 6 months to 1 year, resulted in the serious interference with OGCC’s right to possess its cars. Cardiel’s possession of the cars over a period of more than half a year is, at the very least, substantially certain to result in the conversion of OGCC’s cars and more likely intended to inflict that injury. The economic injury to OGCC, including but not limited to, the loss of use and diminished value of vehicle due to mileage incurred by Cardiel, was a direct and certain result by Cardiel’s acts. Despite that Cardiel did not allege that he had a subjective motive to inflict the economic harm to OGCC, Cardiel’s acts to steal the cars for his own entertainment without any indication to return or compensation for OGCC suffice the willingness prong as the economic loss to OGCC was substantially certain resulting from Cardiel’s acts. Moreover, Cardiel’s counsel did not argue
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against the willfulness in the opposition or produce any evidence to the contrary to suggest otherwise.
Based on the foregoing, the Court finds that Cardiel inflicted an economic injury to OGCC upon either acting with a subjective motive to inflict that injury or with a belief that the injury was substantially certain from his theft of two cars and thus the Court determines that willfulness prong is satisfied.
For conducts to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) was done without just cause or excuse. In re Su, 290 F.3d 1140, at 1143. Torts will generally suffice the wrongful act requirement under section 523(a)(6) in the Ninth Circuit. In re Jercich, 238 F.3d 1202, 1204-06 (9th Cir. 2001). The conversion of another's property without his knowledge or consent, done intentionally and without justification and excuse, to the other's injury, constitutes a willful and malicious injury within the meaning of § 523(a)(6). Id, at 1208 (quoting Del Bino v.
Bailey (In re Bailey), 197 F.3d 997, 1000 (9th Cir.1999)).
The evidence establishes that Cardiel’s acts satisfy the malicious prong. As to the first element, the undisputed facts reveal that Cardiel, as a prior employee at OGCC, stole a 2009 Rolls-Royce and a 2016 McLaren from OGCC. Cardiel took advantage of knowledge he accumulated during his prior employment so that he was able to acquire a set of keys to enter the lot where the cars parked. He subsequently stole the cars that were open with a bunch of keys, and then Cardiel used the bolt cutters that he prepared in advance to cut the lock on the gate so he could drive away. Cardiel kept the cars in his residence for more than half of a year and drove the cars for his own entertainment without an intention to return the cars. These acts establish culpabilities as Cardiel was soon charged criminally in the Los Angeles Superior Court for the theft of the vehicles after the cars were located by the Beverly Hills Police Department.
Cardiel afterwards entered into a felony plea agreement in Los Angeles Superior Court. These undisputed facts show that the acts committed by Cardiel are wrongful.
The second element is easily satisfied here as Cardiel intended these acts as he admitted multiple times in his deposition and, as discussed above, OGCC’s injury was substantially certain inflicted by Cardiel’s acts. As to the third element, Cardiel’s theft necessarily caused certain economic injury to OGCC, including but not limited to the loss of use and diminished value of vehicle due to mileage incurred by Cardiel,
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thus, the third element is satisfied. Lastly, Cardiel did not provide any evidence to show that his acts were done with just cause or excuse. Even to the contrary, Cardiel in his deposition admitted that he stole the cars specifically in order to suit his fancy. Therefore, the Court finds OGCC has established the malicious injury requirement under Section 523(a)(6).
Thus, based on the foregoing, the Court determines that OGCC has proven the claim that the debt owed by Cardiel to OGCC for theft of the two vehicles is except from discharge pursuant to 11 U.S.C § 523(a)(6). However, as noted above, there is no admissible evidence in support of exact amount of damages.
Based on the sustained objection to the damage calculations, OGCC has failed to establish the amount of damages for the injury caused by Cardiel’s acts. However, even assuming there was no issue with the damage award, it is unclear from the pleadings as to whether treble damages are appropriate. California Penal Code § 496(a) and (c) provide in relevant part as follows:
(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. …
A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.
…
(c) Any person who has been injured by a violation of subdivision
(a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.
In this case, the record reflects that Defendant Cardiel pled no contest as part of a
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plea agreement to a charge of §10851 of the Vehicle Code. Section 10851 states in part as follows:
Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.
There is at least one issue concerning the applicability of §496(a) to the restitution award in this case. The Court assumes without determining that a no contest plea as part of a plea bargain results in a criminal conviction. However, it is unclear if the plea to §10851(a) is a conviction of theft, as theft requires intent to steal but § 10851(a) does not, and to the extent the plea bargain constitutes a conviction of theft, under §496(a) a person cannot also be convicted also under §496(a). Finally, the Court understands Cardiel has testified as to intent to steal, but it is also unclear how such testimony factors into the analysis.
Based on the foregoing, assuming there was admissible evidence of damages, it is unclear if OGCC is entitled to treble actual damages along with attorney’s fee pursuant to California Penal Code §496(a) and (c).
As provided by Section 727(d)(1), in order to prevail on cause of action to revoke debtor’s discharge, the movant must prove two elements: (1) that discharge was obtained through debtor’s fraud; and (2) the movant did not know of such fraud until after debtor was granted a discharge. Nielson further clarifies that the fraud must be a but-for cause of the discharge. In re Nielsen, 383 F.3d 922, 925-26 (9th Cir. 2004). A debtor is deemed to have obtained his discharge by fraud if: (1) he knowingly and
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fraudulently made a false oath in or in connection with the bankruptcy proceeding; and (2) the oath concerned a material fact that would have resulted in the denial of discharge under 11 U.S.C. § 727(a)(4)(A) had it been known prior to discharge. Jones v. U.S. Trustee, Eugene, 736 F.3d 897, 900 (9th Cir. 2013); In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010). "An omission or misstatement that 'detrimentally affects administration of the estate' is material." In re Retz, at 1198 (quoting Fogal Legware of Switzerland, Inc., v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir. BAP 1999)).
For OGCC to prove that Cardiel’s discharge was "obtained through" the fraud, OGCC must show that, but for the fraud, the discharge would not have been granted. OGCC alleged that Cardiel’s complete omission of the pending criminal litigation involving the restitution order is material because it constitutes over 60% of Cardiel’s total claims.
That argument is of no merit in no-asset bankruptcy filings. Assuming for the purpose of discussion that Cardiel listed this pending criminal litigation and corresponding restitution in his schedules, it would have no effect on any creditors and Cardiel would get his discharged. The omission would not affect administration of the estate given the non-asset bankruptcy filing. Equally importantly, dischargeability of this litigation is unaffected because of Cardiel’s discharge.
Dischargeability is unaffected by scheduling in Chapter 7 no-assets bankruptcy. In re Nielsen, 383 F.3d 922, at 926. A dischargeable debt would have been discharged, and a non-dischargeable debt would not have been discharged, regardless of scheduling. Id. Therefore, OGCC fails to meet its burden of showing there is no issue on the question of whether the omission is material.
As to the failure to disclose the bank accounts and the company, the Court notes that the argument section of OGCC’s motion on §727(d) only deals with Cardiel’s failure to include the criminal litigation in the schedules. It does not mention the failure to disclosure the bank accounts and companies. OGCC has not presented any evidence to establish the value of those assets in order to show that the non-disclosure was material. Assuming there was the evidence of value, in his opposition, Cardiel has presented the indirect evidence of value so as to raise a question of fact, although the court notes that scant evidence, contained in ¶ 10 of Cardiel’s declaration, lacks any appropriate detail so as to be reliable.
Based on all foregoing, this Court determines that the OGCC has not met the burden of showing the absence of a genuine dispute of material facts as to whether Cardiel knowingly and fraudulently made a false oath concerning a material fact that would have resulted in the denial of discharge for the purpose of 11 U.S.C §727(d)
2:00 PM
and OGCC’s claim under 11 U.S.C §727(d) should be denied.
Based on the foregoing, the Court is inclined to GRANT the motion under 523(a)
as to liability (but not damages) and DENY the motion as to 727(d).
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Movant(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:20-01104 Grobstein v. Torres
$350.00). Complaint for: (1) Avoidance of Actual Fraudulent Transfer [11 U.S.C.
§ 548(a)(1)(A)]; (2) Avoidance of Constructive Fraudulent Transfer [11 U.S.C. § 548(a)(1)(B)]; and (3) Recovery of Avoided Transfer [11 U.S.C. §550] (Attachments: # 1 Adversary Proceeding Cover Sheet) Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Madoyan, Noreen)
From: 7/22/20 EH
(Tele. appr. Meghann Triplett, rep. Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Ana Rosa Lopez Represented By Raymond Perez
Defendant(s):
Joshua Daniel Torres Represented By Raymond Perez
Plaintiff(s):
Howard B Grobstein Represented By Noreen A Madoyan Meghann A Triplett
2:00 PM
Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Meghann A Triplett
2:00 PM
Adv#: 6:20-01151 Chaffey Federal Credit Union v. Bomar, Jr.
From: 9/30/20 EH
(Tele. appr. Lysa Simon, rep. Plaintiff, Chaffey Federal Credit Union)
Docket 0
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Defendant(s):
Russell Ray Bomar Jr. Pro Se
Plaintiff(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Movant(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01166 Colon v. Mountain Park Condominium Association
H. Colon against Mountain Park Condominium Association. priority or extent of lien or other interest in property)),(65 (Dischargeability - other)),(02 (Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy)))
EH
(Tele. appr. Sean Colon, rep. Plainttiff)
Docket 1
- NONE LISTED -
Debtor(s):
Rosa H. Colon Represented By Sean H Colon
Defendant(s):
Mountain Park Condominium Pro Se
Plaintiff(s):
Rosa H. Colon Represented By Sean H Colon
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:20-01106 Daff v. DeGracia
Avoidance of Intentional Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.07, 3439.08];
Avoidance of Constructive Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.05, 3439.07, 3439.08, 3439.09]; 3. Disallowance of Claims [11 U.S.C. §502(d)]; 4. Unjust Enrichment [11 U.S.C. § 105]; 5. Declaratory Relief [11 U.S.C. §§ 541, 544, 548; FRBP 7001(9)]; and 6. Turnover of Property of the Estate [11 U.S.C. § 542] Nature of Suit: (01 (Determination of removed claim or cause)),(13 (Recovery of money/property - 548 fraudulent transfer)),(91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)) (Iskander, Brandon)
From: 7/22/20, 8/19/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Defendant(s):
Satoko DeGracia Represented By Scott Talkov
Plaintiff(s):
Charles W. Daff Represented By
2:00 PM
Trustee(s):
Brandon J Iskander
Charles W Daff (TR) Represented By Brandon J Iskander
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
conversion; 2 constructive trust; 3 unjust enrichment; 4 an accounting; 5 declaratory relief; and 6 primary and secondary indemnification and contribution by American Business Investments , Jesse Bojorquez against Stephen Collias , Continental Capital LLC
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20
EH
Docket 29
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By
3:00 PM
Cara J Hagan Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By
3:00 PM
Cara J Hagan Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 364
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
3:00 PM
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Continental Capital LLC Represented By Cara J Hagan
Continental Capital LLC Represented By Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 365
- NONE LISTED -
Debtor(s):
Devore Stop Represented By
Hutchison B Meltzer
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
3:00 PM
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
3:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 379
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
3:00 PM
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
(Tele. appr. Anthony Mikhail, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Shirley Henrietta Harris Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
Debtor(s):
Christopher M Heidmiller Represented By Carey C Pickford
Joint Debtor(s):
Yvette G Heidmiller Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Eric Enciso, rep, creditor, U.S. Bank) (Tele. appr. George Panagiotou, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Manuel Monroy Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Jennifer Tanios, rep Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Nemesio Rivas Chavez Jr. Represented By
Shawn Anthony Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Mary Louise Rodgers Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jose Roman Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Elvia Roman Represented By
Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Richard Sturdevant, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Miguel A. Lopez Represented By Amanda G Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Teddy Collado Lingad Represented By Jonathan D Doan
Joint Debtor(s):
Rhodora Hernandez Lingad Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Aaron Lloyd, rep. Detor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Yvette Deneese Kearns Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Melissa Raskey, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
David Ruiz Represented By
Melissa A Raskey
Joint Debtor(s):
Michelle Marie Ruiz Represented By Melissa A Raskey
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Paul Lee, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Susan F Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Dane Exnowski, rep. Fay Servicing LLC) (Tele. appr. Julie Villalobos, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Paul Lee, rep. Debtors)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Bryan C. Young Represented By Paul Y Lee
Joint Debtor(s):
Jaimie L. Young Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Griselda Rivera Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 121
Debtor(s):
Melinda Kay Allen Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
Debtor(s):
Lynn Anne Rellins Represented By Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Rebecca Tomilowitz, rep. Debtors) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 45
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 198
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
Docket 59
Debtor(s):
Valecia Renee Knox Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 127
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Julie Villalobos, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 51
Debtor(s):
Daniel W. Sargent Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
Debtor(s):
Jose Diaz Represented By
Nima S Vokshori
Joint Debtor(s):
Betty Diaz Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 41
Debtor(s):
Miguel Jose Padilla Jr. Represented By Todd L Turoci
Joint Debtor(s):
Holly Lynn Padilla Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 54
Debtor(s):
Gail Nash Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Terrence Fantauzzi, rep. Debtors) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 44
Debtor(s):
Gilbert Soto Represented By
Terrence Fantauzzi
Joint Debtor(s):
Nancy Soto Represented By
Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 50
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joseline Medrano, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 58
Debtor(s):
Sherry L. Stokes Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Andy Nguyen, rep. Debtor)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 65
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
Debtor(s):
Lyle Faubion Represented By
Todd L Turoci
Joint Debtor(s):
Angela Faubion Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
Debtor(s):
George Clarence Maret Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Maret Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
Debtor(s):
Juan Carlos De La Cruz Represented By
Sanaz Sarah Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By
Sanaz Sarah Bereliani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Natalie Alvarado, rep. Debtors)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 32
Debtor(s):
Melvin T. Marks Represented By Natalie A Alvarado
Joint Debtor(s):
Maria Popeonas Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
(Tele. appr. Javier Castillo, rep. Debtors)
Docket 350
BACKGROUND:
Ronald and Laura Orantes ("Debtors") filed a chapter 11 voluntary petition on December 9, 2010. The Court entered the order confirming Debtors’ seventh amended chapter 11 plan (the "Plan") on January 21, 2014. On October 7, 2014, the Court entered a final decree and closed the case pursuant to 11 U.SC. § 350(a).
Debtors reopened the case on March 25, 2020. Now, in the instant motion, Debtors move for a discharge. With respect to obtaining a discharge, the Plan, in Article VI.A provides that:
Upon completion of all payment under the Seventh Amended Plan, the Debtors will receive a discharge of all pre-confirmation debts, whether or not the creditor files a proof of claim, accepts the Seventh Amended Plan, or has its claim allowed, except as provided in § 1141 of the Bankruptcy Code. Such discharge will not discharge Debtors from any debts that are non-dischargeable under § 523 of the Bankruptcy Code.
DISCUSSION:
11 U.S.C. § 1141(d)(5)(A) guides the Court when granting discharges in chapter 11
2:00 PM
cases where debtors are individuals:
In a case in which the debtor is an individual--
unless after notice and a hearing the court orders otherwise for cause, confirmation of the plan does not discharge any debt provided for in the plan until the court grants a discharge on completion of all payments under the plan;
11 U.S.C. § 1141(d)(5)(A) (emphasis added).
Here, the Plan provides for a discharge upon completion of all plan payments. Debtors submit they have completed all the required payments. On the record before the Court, Debtors have satisfied its payments to the convenience class through a one- time initial payment on July 1, 2014. Debtors have also satisfied its monthly payments to the unsecured creditors by paying 33.34% of their claims pursuant to the Plan requirements.
Additionally, Debtors paid all secured claims. The only remaining secured debt related to the Plan is the mortgage on Debtors’ Beaumont home. Ocwen was the original creditor secured by the home. Debtors have satisfied the debt as to Ocwen by refinancing the home. They now hold a new mortgage through New American.
Monthly payments are $1,737.74. Debtors, having no credit cards or vehicle payments, declare they should be able to make these payments from their monthly pension income of $10,970.95. The Court considers this mortgage to be a new debt that has no bearing on Ocwen’s claim. As such, there appears to be no further payments due and owing to any creditors under the Plan.
TENTATIVE RULING:
The Court, having reviewed the motion and finding Debtors have satisfied all payments in accordance with the Plan, is inclined to GRANT the motion for entry of discharge pursuant to 11 U.S.C. § 1141(d)(5)(A).
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Ronald Edward Orantes Represented By Javier H Castillo
Joint Debtor(s):
Laura Mier Orantes Represented By Javier H Castillo
Movant(s):
Ronald Edward Orantes Represented By Javier H Castillo
Laura Mier Orantes Represented By Javier H Castillo
10:00 AM
EH
Docket 17
- NONE LISTED -
Debtor(s):
David Dean Frederickson Represented By Daniel King
Joint Debtor(s):
Sheena Lynn Frederickson Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
Also #3 EH
Docket 10
- NONE LISTED -
Debtor(s):
Jeremy Stephen Thornton Represented By Norma Duenas
Joint Debtor(s):
Ivy Joy Cox-Thornton Represented By Norma Duenas
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
Also #2 EH
Docket 11
- NONE LISTED -
Debtor(s):
Jeremy Stephen Thornton Represented By Norma Duenas
Joint Debtor(s):
Ivy Joy Cox-Thornton Represented By Norma Duenas
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
EH
(Tele. appr. Alonso Garcia, Debtor)
Docket 9
- NONE LISTED -
Debtor(s):
Alonso A. Garcia Represented By
James D. Hornbuckle
Joint Debtor(s):
Debra L. Garcia Represented By
James D. Hornbuckle
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
(Tele. appr. Jorge Martinez, Debtor)
Docket 13
- NONE LISTED -
Debtor(s):
Jorge Arturo Martinez Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Docket 226
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 Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 13,017.07 Trustee Expenses: $ 0.00
Attorney Fees: $ 45,000.00 Attorney Costs: $ 5,952.34
Accountant Fees: $3,696.00 Accountant Costs: $332.40
Franchise Tax Board: $2,608.28, pursuant to Claim 60 Court Costs: $1,050
Regarding the remaining distribution of funds, the Court notes two issues with the proposed distribution. First, noting that 11 U.S.C. § 726(b) subordinates the payment of administrative expenses incurred in a previous chapter to administrative expenses incurred during the pendency of the Chapter 7 case, it is unclear why the United States
11:00 AM
Trustee fees are being paid as a Chapter 7 administrative expense rather than a Chapter 11 administrative expense. Second, the Court notes that for many of the claims that are being paid as a Chapter 11 administrative expense, the proof of claim filed by the claimant states that the claim is not entitled to priority. It is unclear why Trustee would unilaterally change that designation to pay the claim as a priority claim rather than pay the claims in accordance with the treatment identified on the proof of claim (and pursuant to the applicable statutory scheme).
APPEARANCES REQUIRED.
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
11:00 AM
(Tele. appr. Brandon Iskander, rep. trustee, Charles Daff)
Docket 23
On February 19, 2020, RJL Sports Protection Inc. ("Debtor") filed a Chapter 7 voluntary petition. The meeting of creditors was originally scheduled for March 26, 2020. The meeting of creditors has been continued on six occasions, and is next currently scheduled to be conducted on December 3, 2020. Trustee has employed Shulman Bastian Friedman & Bui LLP ("Counsel") as counsel pursuant to order entered June 16, 2020.
On October 14, 2020, Trustee filed a motion for an order compelling turnover of documents of the estate. Trustee asserts that repeated attempts to contact Debtor’s counsel were made starting in May 2020, but Trustee did not receive any response until September 3, 2020. On September 3, 2020, Debtor’s counsel of record, Kevin Liu, informed Trustee that he had been suspended from the practice of law and Trustee should contact Frank Hwu instead. Trustee asserts that Frank Hwu has not responded to any of Trustee’s e-mails or calls. Pursuant to the instant motion, Trustee requests the turnover of a variety of documents related to Debtor’s financial situation.
11:00 AM
11 U.S.C. § 521(a)(3) provides that the debtor shall "cooperate with the trustee as necessary to enable the trustee to perform the trustee’s duties under this title." 11
U.S.C. § 521(a)(4) provides that the debtor shall "surrender to the trustee all property of the estate and any recorded information, including books, documents, records, and papers, relating to property of the estate."
"‘Cooperate’ is a broad term, indeed, and must be construed that whenever the trustee calls upon the debtor for assistance in the performance of his duties, the debtor is required to respond, at least if the request is not unreasonable." In re Cambridge Analytica, 596 B.R. 1, 8 (Bankr. S.D.N.Y. 2019). "It is well settled that a trustee should not be required to drag information from a reluctant and uncooperative debtor. Because of the extraordinary relief offered under the Bankruptcy Code[,] delay and avoidance tactics are inconsistent with, and offensive to, its purpose and spirit." In re Royce Homes, LP, 2009 WL 3052439 at *1 (Bankr. S.D. Tex. 2009).
Here, Trustee has provided adequate evidence establishing that Debtor has failed to cooperate with its duties under the Code. Additionally, the Court notes that service of the motion and notice of the hearing appear proper, and the Court deems Debtor’s failure to oppose to be consent to the relief requested under Local Rule 9013-1(h).
Tentative Ruling
The Court is inclined to GRANT the motion, ordering Debtor to comply with Trustee’s requests for turnover of documents outlined in the motion.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
RJL Sports Protection Inc. Represented By
Kevin Liu - SUSPENDED -
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
2:00 PM
Adv#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Defendant(s):
Kenneth Hammond Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
HOLDING DATE
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20
Also # EH
Docket 40
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20 Also #
EH
Docket 49
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
Adv#: 6:18-01100 Zamucen & Curren LLP v. Johnson
From: 7/31/18, 10/3/18, 1/9/19, 1/30/19, 2/27/19, 7/3/19, 7/17/19, 10/16/19,
3/4/20
EH
(Tele. appr. Robert Goe, rep. Defendant) (Tele. appr. Patricia Grace, rep. Plaintiff)
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
2:00 PM
Monica Y Kim
2:00 PM
Adv#: 6:20-01151 Chaffey Federal Credit Union v. Bomar, Jr.
EH
Docket 1
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Defendant(s):
Russell Ray Bomar Jr. Represented By
A. Lysa Simon
Plaintiff(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From 10/15/20 EH
Docket 42
Debtor(s):
Carlos Rizo Represented By
Erika Luna
Joint Debtor(s):
Desiree Santistevan Represented By Erika Luna
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/15/20 EH
Docket 32
Debtor(s):
Zackery B. Ogletree Represented By
James D. Hornbuckle
Joint Debtor(s):
Danielle Police Represented By
James D. Hornbuckle
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 109
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley Michael Smith
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
Christine E. Allen Represented By Christopher J Langley Christopher J Langley Michael Smith Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Tushar Anthony Jansen Pro Se
Joint Debtor(s):
Mary Frances Jansen Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Gertrude Baronda Cebrian Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Russell Eugene Franzen II Represented By Sara E Razavi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Jason Wood Represented By
Natalie A Alvarado
Joint Debtor(s):
Janella Wood Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Juvencio O Ruiz Ortega Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Vincent H. Vogt Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
Debtor(s):
Bryan C. Young Represented By Paul Y Lee
Joint Debtor(s):
Jaimie L. Young Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 115
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
EH
Docket 44
Debtor(s):
Gilbert Soto Represented By
Terrence Fantauzzi
Joint Debtor(s):
Nancy Soto Represented By
Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 53
Debtor(s):
Deborah Ann Pardo Represented By Paul Y Lee
Trustee(s):
Charles W Daff (TR) Pro Se
11:01 AM
Docket 71
Debtor(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 85
Debtor(s):
Jesus N Aguilera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
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
11:01 AM
EH
Docket 68
Debtor(s):
Anthony P Mendoza Represented By Paul Y Lee
Joint Debtor(s):
Lena E Mendoza Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
Debtor(s):
Frank A. Rocha III Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
Debtor(s):
Jamar A Earnest Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 364
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
2:00 PM
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Continental Capital LLC Represented By Cara J Hagan
Continental Capital LLC Represented By Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 379
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
2:00 PM
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 365
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
2:00 PM
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By
2:00 PM
Lawrence J Kuhlman Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
conversion; 2 constructive trust; 3 unjust enrichment; 4 an accounting; 5 declaratory relief; and 6 primary and secondary indemnification and contribution by American Business Investments , Jesse Bojorquez against Stephen Collias , Continental Capital LLC
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20
EH
Docket 29
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
2:00 PM
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
12:00 PM
EH
(Tele. appr. David M. Goodrich, rep. debtor, Visiting Nurse Association)
(Tele. appr. Fred Neufeld, rep. creditor, Healthsure Management Services, LLC)
(Tele. appr. David A. Wood, rep. Creditor Committee)
(Tele. appr. Bruce Gordon, rep. interested party, Bruce Gordon)
Docket 834
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
1:00 PM
EH
Docket 235
Debtor(s):
Kirk Eugene Frantz Represented By Jenny L Doling
Joint Debtor(s):
Mary Elizabeth Frantz Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 86
Debtor(s):
Allan Martin Borgen Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 89
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
EH
Docket 138
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
1:00 PM
EH
(Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 128
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
1:00 PM
Docket 195
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
EH
Docket 62
Debtor(s):
Richard Ortiz Represented By Elena Steers
Joint Debtor(s):
Dolores Ortiz Represented By Elena Steers
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 69
Debtor(s):
Guillermina Perez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 65
Debtor(s):
Rodrigo Fernando Ramirez Guinea Represented By
James G. Beirne
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 85
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
EH
(Tele. appr. Natalie Alvarado, rep. debtor, Natona and Tameiko Smith) Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 52
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
EH
Docket 52
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 101
Debtor(s):
Don Gurule Represented By
Christopher Hewitt
Joint Debtor(s):
Elaine Gurule Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 102
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 36
Debtor(s):
Incha K Lockhart Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
(Tele. appr. Jennifer Tanios, rep. debtor, Irene Arias) Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 57
Debtor(s):
Irene Elizabeth Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 53
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 57
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
1:00 PM
EH
Docket 57
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 49
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
1:00 PM
EH
Docket 36
Debtor(s):
Erika Lynn Pruitt Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 65
Debtor(s):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 85
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 49
Debtor(s):
Gail Nash Represented By
Edward T Weber
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 58
Debtor(s):
Jerry Melendrez Represented By Todd L Turoci
Joint Debtor(s):
Laura Therese Melendrez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 31
Debtor(s):
Sara Rolston Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 46
Debtor(s):
Jorge Luis Ibarra Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 58
Debtor(s):
Mark E Harvey Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 44
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 30
Debtor(s):
Harinder Heera Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 52
Debtor(s):
Jorge Mercado Represented By Paul Y Lee
Joint Debtor(s):
Martha Mercado Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Tele. appr. Joey De Leon, rep. Ch. 13 Trustee)
Docket 31
Debtor(s):
Mark David Dixon Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 70
Debtor(s):
Alejandro E. Penaloza Represented By Sundee M Teeple
Joint Debtor(s):
Maria G. Penaloza Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 49
Debtor(s):
Paul Edward Young Jr. Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 98
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 47
Debtor(s):
Sandraea La 'Jean Plummer Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 56
Debtor(s):
Chris Dennis Represented By
Christopher Hewitt
Joint Debtor(s):
Ami Dennis Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 35
Debtor(s):
Jeremiah Schermerhorn Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 54
Debtor(s):
Michael Brown Represented By Kevin Tang
Joint Debtor(s):
Robin Brown Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 34
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 48
Debtor(s):
Edwin Leonel Barco Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Juana De Jesus Marin Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
(Tele. appr. Todd L. Turoci, rep. debtor, Bogar and Elvira Hernandez)
Docket 27
Debtor(s):
Bogar Hernandez Represented By Todd L Turoci
Joint Debtor(s):
Elvira Landin Hernandez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CREDITOR BROKER SOLUTION INC.
From: 10/13/20 EH
Docket 33
- NONE LISTED -
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
Movant(s):
Broker Solutions Inc. dba New Represented By
Erin M McCartney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Sheryl K. Ith, rep creditor Ford Motor Credit Company LLC)
Docket 10
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Humberto Raya Represented By James P Doan
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA, N.A.
EH
Docket 60
- NONE LISTED -
Debtor(s):
Michael Anthony Delgado III Represented By Gary S Saunders
Movant(s):
Bank of America, N.A. Represented By Robert P Zahradka Megan E Lees
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ACAR LEASING LTD
EH
(Tele. appr. Sheryl K. Ith, rep creditor GM Financial)
Docket 11
11 U.S.C. § 365(p)(1) provides: "If a lease of personal property is rejected or not timely assumed by the trustee under subsection (d), the leased property is no longer property of the estate and the stay under section 362(a) is automatically terminated." Here, the deadline to assume the lease with Movant was November 10, 2020, pursuant to § 365(d). The lease not having been assumed, the automatic stay has already terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
George Stephen Brewer Represented By Alexander Pham
Joint Debtor(s):
Constance Josephine Brewer Represented By
11:00 AM
Movant(s):
Alexander Pham
ACAR Leasing LTD d/b/a GM Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
(Tele. appr. Vincent F. Frounjian, rep creditor American Honda Finance Corporation)
Docket 8
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Ricardo Agustin Chavez Represented By Marlin Branstetter
Joint Debtor(s):
Martha I Granados de Chavez Represented By
11:00 AM
Movant(s):
Marlin Branstetter
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: CALIFORNIA HOUSING FINANCE AGENCY
EH
(Tele. appr. April E. Roberts, rep. debtor Mark Dixon)
Docket 35
- NONE LISTED -
Debtor(s):
Mark David Dixon Represented By April E Roberts
Movant(s):
California Housing Finance Agency Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: IDAHO CENTRAL CREDIT UNION
EH
Docket 11
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2)
-GRANT waiver of Rule 4001(a)(3) stay
-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):
Elena De Hoyo Represented By Paul Y Lee
Movant(s):
Idaho Central Credit Union Represented By
Bruce P. Needleman
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC .
EH
(Tele. appr. Robert T. Chen, rep, debtor, Edward D. Lott)
(Tele. appr. Kelly M. Kaufmann, rep creditor Nationstar Mortgage LLC)
Docket 34
Movant to apprise Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Edward Dwayne Lott Represented By
Raj T Wadhwani
Movant(s):
U.S. Bank National Association, not Represented By
Nancy L Lee
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JOSHUA WOODS MILLER
EH
(Tele. appr. Jeffrey L. Sklar, rep creditor Joshua Miller)
Docket 13
When considering a motion for relief from the automatic stay to pursue a non- bankruptcy action, the Court considers the Curtis factors:
(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 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 good or proceeds in question; (7) whether the litigation in another forum would prejudice the interests of other creditors, the creditor’s committee and other interested parties; (8) whether the judgment
11:00 AM
claim arising from the foreign action is subject to equitable subordination; (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 and the "balance of hurt."
In re Roger, 539 B.R. 837, 844-45 (C.D. Cal. 2015). In Roger, the Court further stated:
The Ninth Circuit has recognized that the Curtis factors are appropriate, nonexclusive, factors to consider in deciding whether to grant relief from the automatic stay to allow pending litigation to continue in another forum. While the Curtis factors are widely used to determine the existence of cause, not all of the factors are relevant in every case, nor is a court required to give each factor equal weight.
According to the court in Curtis, the most important factor in determining whether to grant relief from the automatic stay to permit litigation against the debtor in another forum is the effect of such litigation on the administration of the estate. Even slight interference with the administration may be enough to preclude relief in the absence of a commensurate benefit. That said, some cases involving the automatic stay provision do not mention the Curtis factors at all.
Nevertheless, although the term "cause" is not defined in the Code, courts in the Ninth Circuit have granted relief from stay under § 362(d)
when necessary to permit pending litigation to be concluded in another forum if the non-bankruptcy suit involves multiple parties or is ready for trial.
Id. at 845 (quotations and citations omitted). As is typically the case, "[t]he record does not indicate that Curtis factors 3, 4, [ ] 6, 8, or 9 are at issue in this case, nor do the parties argue to the contrary." Id.
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Turning to the remaining of the factors, the Court concludes that the majority of the factors weigh in favor of granting Movant relief from the automatic stay. Specifically, while the eleventh factor may weigh against granting relief from stay, because the state court litigation is in its early stages, the remainder of the factors weigh in favor of relief from stay being granted because Movant "seeks recovery only from applicable insurance, if any, and waives any deficiency or other claim against the Debtor or property of the Debtor’s bankruptcy estate." Because Movant has agreed to waive any deficiency claim against Debtor, the continuation of the state court proceedings will not interfere with the administration of the bankruptcy estate or prejudice any creditors. Furthermore, the Court notes that it deems Debtor’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h) and 11
U.S.C. § 362(g)(2).
Based on the foregoing, the Court is inclined to GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and GRANT the 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):
Alonso Gonzalez Resendiz Represented By Edgar P Lombera
Movant(s):
Joshua Woods Miller Represented By Jeffrey L Sklar
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: NATIONS DIRECT MORTGAGE, LLC
EH
(Tele. appr. David L. Chaffin, rep movant Nations Direct Mortgage, LLC) (Tele. appr. Jennifer Tanios, rep debtor Flor Aguilar)
Docket 62
Movant to apprise the Court of the status of arrears. Parties to apprise the Court of the status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Movant(s):
Nations Direct Mortgage, LLC Represented By Daniel K Fujimoto Caren J Castle
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
(Tele. appr. Vincent V. Frounjian, rep creditor Mechanics Bank) (Tele. appr. Donna Travis, rep debtor Ruben and Carmen Macias)
Docket 77
- NONE LISTED -
Debtor(s):
Ruben Macias Represented By Dana Travis
Joint Debtor(s):
Carmen Macias Represented By Dana Travis
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES, INC.
EH
(Tele. appr. Gary S. Sunders, rep debtor Emmanuel and Razel Pastor)
(Tele. appr. Diana Torres-Brito, rep creditor Carrington Mortgage Services, LLC)
Docket 45
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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 opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
11:00 AM
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Movant(s):
CARRINGTON MORTGAGE Represented By Christopher Giacinto Diana Torres-Brito Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 10/27/20 EH
(Tele. appr. Gary S. Saunders, rep interested party Michael Anthony Delgado, III)
Docket 32
11 U.S.C. § 362(c)(3)(A) provides that
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)--
the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case;
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Here, Debtor had a previous Chapter 13 case dismissed on October 18, 2019, less than one year before the instant case was filed on November 10, 2019. Debtor’s motion to continue the automatic stay having been denied pursuant to order entered December 27, 2019, the automatic stay expired on December 10, 2019. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Movant(s):
Lakeview Loan Servicing, LLC, and Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20, 2/4/20, 3/31/20, 4/21/20, 8/25/20
EH
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
Also #14,16,17,18
EH
(Tele. appr. David M. Goodrich, rep debtor Visting Nurse Association)
(Tele. appr. Jason B. Komorsky, rep Special Counsel for debtor, Visiting Nurse Assoc. of the Inland Counties)
(Tele. appr. Fred Neufeld, rep creditor Health Mangement Services, LLC) (Tele. appr. Cameron Ridley, rep U.S. Trustee's Office)
(Tele. appr. David A. Wood, rep Creditor Committee)
Docket 790
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Movant(s):
Committee of Creditors Holding Represented By
David Wood Richard A Marshack
2:00 PM
Also #14,15,17,18
EH
Docket 780
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
HealthSure Management Services, Represented By
Fred Neufeld
2:00 PM
From: 8/28/18, 9/25/18, 10/30/18, 11/13/18, 12/18/18, 2/26/19, 3/27/19, 5/1/19, 7/30/19, 9/17/19, 11/19/19, 2/4/20, 4/21/20, 9/8/20
Also #14,15,16,18
EH
Docket 4
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Also #14,15,16,17
EH
Docket 687
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Also # 15,16,17,18
EH
Docket 788
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Weiland Golden Goodrich LLP Represented By David M Goodrich
11:00 AM
EH
(Tele. appr. Jenny Doling, rep. Debtor)
Docket 14
- NONE LISTED -
Debtor(s):
Rosy Muela Salcido Represented By
Miguel Alexandre Valente Jenny L Doling
Movant(s):
Rosy Muela Salcido Represented By
Miguel Alexandre Valente Jenny L Doling
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 26
Service: Proper Opposition: None
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: $1,162.63 Trustee Expenses: $16.00
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):
Kimberly Ann Gadlin Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
(Tele. appr. Lynda Bui, chapter 7 trustee)
Docket 38
Service: Proper Opposition: None
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: $3,025 Trustee Expenses: $320.98
Accountant Fees: $2,872.50 Accountant Costs: $319.50
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):
Connie Lim Represented By
Daniel King
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
11:00 AM
EH
(Tele. appr. David Akintimoye, rep. Debtor) (Tele. appr. Lynda Bui, chapter 7 trustee)
(Tele. appr. Brandon Iskander, rep. Lynda Bui, chapter 7 trustee)
Docket 25
11/18/2020
On July 22, 2020, Joseph Anthony Perez ("Debtor") filed a voluntary petition for chapter 7 relief. In his petition, the Debtor listed his address as 25543 Buckland Lane, Moreno Valley, CA 92553 ("Buckland Property"). On October 6, 2020, the Court takes judicial notice that Debtor filed amended schedules A/B and C valuing his ownership in the Property at $320,000 and claiming an exemption against the Property in the amount of $175,000.
Trustee intends to attempt to sell the Property at a listing price of $355,000, such proceeds estimated to provide a meaningful distribution to the benefit of creditors. Accordingly, on October 13, 2020, Trustee filed the instant motion ("Employment
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Application") seeking Court approval to employ Elite Premier Properties (the "Firm"), specifically Victor Benjamin ("Mr. Benjamin"), the President and Chief Executive Officer of the Firm, as the real estate broker on the basis that he is qualified and disinterested. In support of his qualifications Mr. Benjamin has provided a declaration and a copy of his resume. Mr. Benjamin has approximately 38 years in the real estate industry. He declares he is disinterested because he has no connections with any parties interested in the bankruptcy.
On October 23, 2020, Debtor filed an opposition to Trustee’s Employment Application on the basis that Trustee had provided insufficient evidence and failed to account that Debtor’s ownership is as a joint tenant with his non-debtor wife. Debtor claimed, inter alia, that Trustee is required to provide a copy of the Firm’s fictious business name ("FBN") on the basis that "it is unprofessional conduct for a licensed professional to use a DBA without obtaining an FBN certificate or permit." Debtor also asserted that the listing agreement has the incorrect end date and is "incomprehensible."
The Court notes Trustee has addressed this last issue on October 29, 2020 by filing Mr. Benjamin’s supplemental declaration, which included an amended listing agreement to reflect the correct listing end date of January 2021, rather than 2020.
On November 11, 2020, Trustee filed a reply to Debtor’s opposition, as well as a supplement to its Employment Application requesting to employ Mr. Benjamin to market another property, 1046 West Camile Street, Santa Ana, California 92703, which Debtor had failed to disclose in his schedules. Attached to the supplement is the listing agreement for $545,000, but no other evidence. On November 12, 2020, Debtor filed an objection to Trustee’s supplement.
In relevant part, 11 U.S.C. §327 provides for Trustee’s employment of professionals:
(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants,
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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.
…
In a case under chapter 7, 12, or 11 of this title, a person is not disqualified for employment under this section solely because of such person's employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest.
11 U.S.C. § 327 (emphasis added).
FED. R. BANKR. P. Rule 2014(a) guides the Court in approving employment applications:
An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professionals pursuant to § 327, § 1103, or § 1114 of the Code shall be made only on application of the trustee or committee. The application shall be filed and, unless the case is a chapter 9 municipality case, a copy of the application shall be transmitted by the applicant to the United States trustee. The application shall state the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant’s knowledge, all of the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. The application shall be accompanied by a verified statement of the person to be employed setting forth the person’s connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee.
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Here, Debtor is correct that there is no evidence to support the $355,000 valuation. However, the Court agrees with Trustee that the Buckland Property appears to be community property, and as such the scheduled value of the property in the amount of
$320,000, less the homestead exemption and costs of sale, leaves enough equity for the estate. This is a sufficient basis to approve the Application.
Trustee has provided the listing agreement, which the Court finds is "comprehensible" notwithstanding Debtor’s objection. Mr. Benjamin’s declaration and resume, establish Mr. Benjamin’s qualifications and disinterest. Additionally, regardless of whether a professional must obtain an FBN when operating a DBA, there is no requirement that a realtor submit a FBN certificate as part of the application pursuant to FED. R. BANKR. P. Rule 2014(a).
For the foregoing reasons, the Court is inclined to APPROVE the application, authorizing the employment of the Firm and Mr. Benjamin.
APPEARANCES REQUIRED.
Debtor(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Movant(s):
Lynda T. Bui (TR) Represented By Brandon J Iskander
Trustee(s):
Lynda T. Bui (TR) Represented By
11:00 AM
Brandon J Iskander
12:00 PM
(Tele. appr. Pat Serna, pro se Debtor)
Docket 6
- NONE LISTED -
Debtor(s):
Pat Serna Pro Se
Movant(s):
Pat Serna Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20, 4/22/20, 7/1/20; 9/2/20, 9/9/20
EH
(Tele. appr. Charles Schrader, rep. Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
From: 10/14/20 EH
Also #7
(Tele. appr. Louis Esbin, rep. creditor, Rafap & Mona Gerges) (Tele. appr. David Goodrich, rep. Plaintiff)
Docket 10
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. On May 4, 2018, Trustee employed Weiland Golden Goodrich LLP as counsel for the bankruptcy estate. On December 5, 2019, the Court extended the deadline for Trustee to file avoidance actions until March 6, 2020; that deadline was subsequently extended to May 11, 2020. Dkt. 115. On May 1, 2020, the Court ordered Debtors’ bankruptcy estate to be substantively consolidated with thirty-seven related entities.
On May 11, 2020, Trustee filed a complaint against Raafat Yousef ("Defendant"). Trustee’s complaint contained three causes of action: (1) actually fraudulent transfer;
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constructively fraudulent transfer; and (3) recovery of avoided transfers.
The complaint generally alleges that Debtors perpetrated a Ponzi scheme. Specifically, Debtors induced friends, acquaintances, and members of their church to invest in a real estate flipping investment by representing that their investment would be used in relation to a real estate project. Instead, Debtors operated in a typical Ponzi scheme fashion, using subsequent investments to pay off earlier investments at a profit. Debtors also used some of the funds to pay off their personal and business expenses, and, for other investors, convinced the investor to reinvest the money.
Defendant in this action is one of the investors who received prepetition payments from Debtors. Specifically, Defendant received payments in the aggregate amount of
$196,002.20 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On September 22, 2020, Trustee filed a motion for default judgment against Defendant. The motion for default judgment only requested judgment as to the second and third causes of action in the complaint. On October 14, 2020, the Court continued the hearing for supplemental briefing. On November 4, 2020, Trustee filed the instant amended motion for default judgment, this time only requesting judgment as to the first and third causes of action.
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.
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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, Defendant was served at 18700 Yorba Linda Blvd., Apt. 97, Yorba Linda, CA 92886-4176. It does not appear there is any information in the record that would establish that this is a proper service address for Defendant, or that would indicate how Trustee determined that the address used was a valid service address for Defendant.
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, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding
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avoidance of fraudulent transfer – actual intent, the first claim for relief cites 11 U.S.C. §§ 544(b), 548(a)(1)(A), 550 and CAL. CIV. CODE § 3439.04(a)(1). CAL. CIV.
CODE § 3439.04(a)(1) provides:
A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows:
With actual intent to hinder, delay, or defraud any creditor of the
debtor
The court in In Re AFI Holding, Inc. has stated that "the mere existence of a Ponzi scheme is sufficient to establish actual intent under § 548(a)(1) or a state's equivalent to that section." 525 F.3d 700, 703 (9th Cir. 2008) (internal quotations omitted). "Under the actual fraud theory, the receiver may recover the entire amount paid to the winning investor, including amounts which could be considered "return of principal." Donell v. Kowell, 533 F.3d 762, 770 (9th Cir. 2008)
Here, the payments totaling $196,002.20 are transfers of Debtors’ property, as PIG’s assets were consolidated into the Debtors’ bankruptcy case. The payments occurred in 2014 and 2015 within the four-year period to file the instant action as proscribed by 11 U.S.C. § 546(a). See Dkt. 16, Ex. 2 & 3. Per the general allegations in the complaint, Debtors were running a Ponzi scheme by paying investors fictious profits with funds raised by other investors. As the transfers were made during the alleged Ponzi scheme, there is "actual intent" to hinder, delay, or defraud. Additionally, at the time of the transfers the IRS already held a claim from 2013 against the Debtors. See Dkt. 16, Ex. 1. Accepting these allegations as true, the Court is inclined to find Trustee has established that the payments to Defendant are fraudulent transfers.
In accordance with the foregoing, the Court is inclined to GRANT the motion for default judgment in favor of the Plaintiff, allowing Trustee to avoid the transfers and
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recover them for the benefit of the estate pursuant to 11 U.S.C. § 550.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
John P. Pringle Represented By David M Goodrich
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01073 Pringle v. Yousef
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20, 10/14/20 EH
Also #6
(Tele. appr. Louis Esbin, rep. creditor, Rafap & Mona Gerges) (Tele. appr. David Goodrich, rep. Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Yousef Pro Se
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
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, 11/14/18, 1/30/19, 2/27/19, 6/12/19, 7/10/19, 1/15/20, 4/22/20, 9/30/20
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):
Rafat Gerges Represented By
2:00 PM
Louis J Esbin
St. Mary Properties, LLC Represented By Louis J Esbin
Mona Gerges Represented By
Louis J Esbin
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 9/15/20
Also #10 EH
(Tele. appr. Janet Kang, rep. Plaintiff) (Tele. appr. Jiyoon, rep. Defendants)
Docket 1
- NONE LISTED -
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
2:00 PM
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
EH
Docket 47
- NONE LISTED -
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):
Vivian Kim Represented By
Jiyoung Kym Jiyoung Kym
Vivian Kim Represented By
Jiyoung Kym
2:00 PM
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
Also #12 & 13
(Tele. appr. Scott Talkov, rep. Defendant)
Docket 57
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Movant(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
2:00 PM
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
From 10/7/20, 10/14/20 EH
Also #11 & 13
Docket 1
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By Tyler H Brown
2:00 PM
Yan Sum Alvarado Represented By Tyler H Brown
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
EH
Also #11 & #12
Docket 39
- NONE LISTED -
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
Defendant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Movant(s):
Corinne Lara Ramirez Represented By Scott Talkov
Plaintiff(s):
David Eggleston Represented By Tyler H Brown
Karin Doerr Represented By
Tyler H Brown
Richard Alvarado Represented By
2:00 PM
Tyler H Brown
Yan Sum Alvarado Represented By Tyler H Brown
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01032 Whitmore v. Tsirtsis et al
Nature of Suit: (11 (Recovery of money/property - 542 turnover of property)),(13 (Recovery of money/property - 548 fraudulent transfer))
*Complaint dismissed as to Defendants Christos Minoudis and Maria Minoudis on 9/22/20, (doc. 26)
*Complaint dismissed as to Defendant James Dimitri Tsirtsis on 10/30/20, (doc.29)
From: 5/27/20, 7/1/20 EH
(Tele. appr. Michelle Marchisotto, rep. Plaintiff) (Tele. appr. Brad Mokri, rep. Defendants)
Docket 1
- NONE LISTED -
Debtor(s):
James Dimitri Tsirtsis Represented By Donald W Sieveke
Defendant(s):
James Dimitri Tsirtsis Represented By Elliott H Stone
Pota N. Tsirtsis Represented By
2:00 PM
Brad A Mokri
Christos Minoudis Represented By Brad A Mokri
Michelle A Marchisotto
Maria Minoudis Represented By Brad A Mokri
Michelle A Marchisotto
Angelo D. Tsirtsis Represented By Brad A Mokri
Plaintiff(s):
Robert S. Whitmore Represented By
Michelle A Marchisotto
Trustee(s):
Robert Whitmore (TR) Represented By
Michelle A Marchisotto
2:00 PM
Adv#: 6:20-01166 Colon v. Mountain Park Condominium Association
From: 10/28/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Rosa H. Colon Represented By Sean H Colon
Defendant(s):
Mountain Park Condominium Pro Se
Plaintiff(s):
Rosa H. Colon Represented By Sean H Colon
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 50
- NONE LISTED -
Debtor(s):
Fernando Herrera III Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 59
BACKGROUND
On February 24, 2020, Miesha Johnson ("Debtor") filed a Chapter 13 voluntary petition. On May 29, 2020, Debtor's Chapter 13 plan was confirmed.
On September 2, 2020, Trustee filed a motion to dismiss for failure to make plan payments. On September 17, 2020, Debtor filed an opposition. At approximately 5:18
p.m. on October 14, 2020, the day before the hearing on Trustee's motion to dismiss, Debtor filed a declaration stating she made a $7,000 payment on October 9, 2020, and that the payment cleared her bank account on October 13, 2020. The payment not having posted to the Trustee's account by the hearing, the case was dismissed on October 17, 2020.
On October 20, 2020, Debtor filed a motion to vacate dismissal. On October 22, 2020, Trustee filed comments indicating disapproval of the motion.
The Court also notes that at the time of dismissal there was a pending motion for relief from stay. Ultimately, Debtor and Freedom Mortgage Corporation entered into an adequate protection agreement that was not approved by the Court because the case had already been dismissed.
DISCUSSIONS
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
11:00 AM
based on "mistake, inadvertence, surprise, or excusable neglect." Rule 60(b) relief is extraordinary. Yet, in this court, a request for relief from a Chapter 13 dismissal order has become semi-ordinary.
Here, Debtor had provided evidence to the Court prior to the hearing indicating that she had attempted to cure the plan delinquency. Therefore, the facts of this case being relatively innocuous, the Court is inclined to vacate the dismissal conditioned on compliance with the Trustee's comments.
The Court is inclined to GRANT the motion conditioned on compliance with the Trustee’s conditions. Debtor to apprise the Court of whether she is in compliance with the terms of the adequate protection stipulation filed on October 20, 2020 as docket number 61.
APPEARANCES REQUIRED.
Debtor(s):
Miesha T. Johnson Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 29
- NONE LISTED -
Debtor(s):
Melvin T. Marks Represented By Natalie A Alvarado
Joint Debtor(s):
Maria Popeonas Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/8/20, 10/15/20 EH
Docket 27
- NONE LISTED -
Debtor(s):
Christopher Romash Represented By Andy C Warshaw
Movant(s):
Christopher Romash Represented By Andy C Warshaw Andy C Warshaw Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
David Ruiz Represented By
Melissa A Raskey
Joint Debtor(s):
Michelle Marie Ruiz Represented By Melissa A Raskey
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Susan F Fontecha Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8 EH
Docket 33
The Court, having reviewed the motion, notice appearing proper and no opposition having been filed, is inclined to GRANT the motion, AVOIDING the lien of Household Finance Corporation of California conditioned upon completion of the Chapter 13 plan.
APPEARANCES REQUIRED.
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Luz Dumlao Santos Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juanna Flordeliza Phillips Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Peter Pastorelli Represented By Benjamin R Heston
Joint Debtor(s):
Martha Maria Pastorelli Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Rodriguez Represented By Andrew Nguyen
Joint Debtor(s):
Celine Rodriguez Represented By Andrew Nguyen
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):
Bradlee Berry Represented By Christopher Hewitt
Joint Debtor(s):
Torri Arnett Represented By
Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Daniel Rivas Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Fred Sachs Represented By
Krystina T Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anna Lisa Macias Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Lilia Orozco Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Perry A Covello Represented By Gary S Saunders
Joint Debtor(s):
Tia Lia Covello Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Darrell L. Washington Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Margarita Barham Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 96
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Justo Ocegueda Represented By Lionel E Giron
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 55
- NONE LISTED -
Debtor(s):
Golda Y Williams Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 68
- NONE LISTED -
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Dari Kelley Represented By
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Charles Dennis West Represented By Erika Luna
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
Sherry L. Stokes Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
- NONE LISTED -
Debtor(s):
Lori Ann Caruthers Collins Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 65
- NONE LISTED -
Debtor(s):
Mercy Doria Represented By
Andrew Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 30
- NONE LISTED -
Debtor(s):
Paul Trevino Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 43
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Melvin T. Marks Represented By Natalie A Alvarado
Joint Debtor(s):
Maria Popeonas Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 47
- NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 115
- 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
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 48
Debtor(s):
Maria Perez Represented By
Christopher J Langley Michael Smith
Movant(s):
U.S. Bank National Association, as Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20, 6/9/20, 7/21/20, 8/25/20, 9/29/20
EH
Docket 1
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
From: 10/13/20 EH
Docket 253
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
From: 9/29/20 EH
Docket 8
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
2:00 PM
Adv#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20
EH
Docket 1
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):
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#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/28/20
EH
Docket 1
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):
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#: 6:16-01163 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, 4/25/18, 2/27/18, 6/12/19, 1/29/20, 5/27/20, 9/30/20
EH
Docket 1
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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 Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
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, 10/31/18, 7/31/19, 9/11/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20
EH
Docket 82
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
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
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
*Another Summons issued 10/14/20
EH
Docket 1
Debtor(s):
Donyel Betrice Johnson Represented By John D Sarai
Defendant(s):
Donyel Betrice Johnson Pro Se
Plaintiff(s):
Phillips Chiropractic, Inc. Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
1:00 PM
Adv#: 6:20-01077 Pringle v. Youssef et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John Maurice Youssef Pro Se
Sally Yo Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01078 Pringle v. Peng
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01080 Pringle v. Rouse
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Lana Lee Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01082 Pringle v. Wagdy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Wagdy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01085 Pringle v. Khozam
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Margaret Khozam Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01056 Pringle v. Mettias
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Martin Amin Mettias Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01058 Pringle v. Gendy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other))
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Saad Gendy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01089 Pringle v. Barsoom
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Roshdy Wahba Barsoom Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01090 Pringle v. Sawires
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sanad Sawires Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01092 Pringle v. Dawoud
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sohir Gendy Gerges Dawoud Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01095 Pringle v. Fannyan
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Zahra Fannyan Represented By Kaveh Ardalan
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01051 Pringle v. Serour
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Aly Serour Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01052 Pringle v. Saber et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Am Saber Pro Se
Yousria Mikhail Guirguis Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01053 Pringle v. Bebawy et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amgad Bebawy Represented By Michael A Corfield
Reham Nakhil Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01054 Pringle v. ANRUF LLC et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
ANRUF LLC Represented By
Andy C Warshaw
Nadia Khalil Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01055 Pringle v. Mena
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Antonio Mena Represented By
Jeffrey Charles Bogert
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01057 Pringle v. Makar
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
Alias issued 7/7/20 From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ayad Makar Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01059 Pringle v. Bishay
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Boles Bishay Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01060 Pringle v. Portrans
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Diamond Portrans Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01061 Pringle v. Mikhael
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Mikhael Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01062 Pringle v. Makkar
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Louis Makkar Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01063 Pringle v. Ghaly
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ramez Ghaly Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01064 Pringle v. Farah
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Mina Farah Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01065 Pringle v. Yassa
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ehap Yassa Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01066 Pringle v. Abdelmessih
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Noshi Abdelmessih Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01067 Pringle v. Eskander
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Emad Eskander Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01069 Pringle v. Ghobrial
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fared Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01070 Pringle v. Haroun
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Fouad Zikry Haroun Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01071 Pringle v. Youssef
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Mouric Zake Youssef Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01072 Pringle v. Goldvilla
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01074 Pringle v. Ghobrial
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ishak Ghobrial Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01075 Pringle v. Rouse
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
James Rouse Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc. et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
John 20/20 Enterprises, Inc. Represented By Michael A Corfield
Amir Maher Guirguis Awad Represented By Scott Talkov
Christopher M Kiernan
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
1:00 PM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01079 Pringle v. Kodsy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Karem Fayez Kodsy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01081 Pringle v. Labib et al
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Magda Labib Represented By
Michael A Corfield
Khair Labib Represented By
Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01083 Pringle v. Eskarous
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01084 Pringle v. Solomen
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Marcos Solomen Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01086 Pringle v. Zakhary
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Raafat Welliam Aziz Zakhary Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01087 Pringle v. Zumut et al
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ray Zumut Represented By
Lawrence Hoodack
Mary Zumut Represented By
Lawrence Hoodack
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01088 Pringle v. Noshy
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sameh Noshy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01091 Pringle v. Beshai
Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a) (1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
(STANDSTILL AGREEMENT UNTIL 9/16/20) HOLDING DATE
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sarwat Beshai Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01093 Pringle v. St. George Medical Office L.L.C.
$350.00). Complaint: (1) To Avoid and Recover Transfers Pursuant to 11 U.S.C.
§§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
St. George Medical Office L.L.C. Represented By
Andy C Warshaw
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01094 Pringle v. Wextron Ltd
(1) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§548(a)(1)(A) and 550, and Cal. Civ. Code § 3439.04 (a)(1); (2) To Avoid and Recover Transfers Pursuant to 11 U.S.C. §§ 548(a)(1)(B) and 550, and Cal. Civ. Code §§ 3439.04(a)(2) and 3439.05(a); (3) To Preserve Transfers for the Benefit of the Estate Pursuant to 11 U.S.C. § 551 Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goodrich, David)
From: 7/27/20, 9/28/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Wextron Ltd Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01126 Pringle v. Botors
From: 9/30/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Emad Khalifa Botors Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01127 Pringle v. Awad
EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amir Maher Guirgus Awad Represented By Scott Talkov
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
EH
Docket 88
- NONE LISTED -
Debtor(s):
Oraib Innabi Represented By
Julie J Villalobos
Movant(s):
Wilmington Trust, National Represented By Dipika Parmar Dane W Exnowski Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 11/24/20 EH
(Tele. appr. Kirsten Martinez rep. creditor, U.S. Bank National Association)
Docket 48
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Maria Perez Represented By
Christopher J Langley Michael Smith
Movant(s):
U.S. Bank National Association, as Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, NATIONAL ASSOCIATION
EH
Docket 55
There being no opposition filed, service appearing proper, the Court, finding cause shown, is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT requests under ¶ 2;
-GRANT waiver of Rule 4001(a)(3) stay;
-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):
Ricky Antonio Scott Represented By Eva M Hollands
Joint Debtor(s):
Shemida Shiloni Scott Represented By Eva M Hollands
11:00 AM
Movant(s):
Wells Fargo Bank, National Represented By Joseph C Delmotte Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK
From: 11/3/20 EH
Docket 59
- NONE LISTED -
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From 10/20/20 EH
(Tele. appr. Donna Travis, rep. Debtors)
Docket 30
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
11:00 AM
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES
EH
(Tele. appr. Sheryl Ith, rep. creditor GM Financial)
Docket 62
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 2;
-DENY alternative request under ¶ 6 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):
Jennifer Isabella Solares Represented By
Rabin J Pournazarian
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
(Tele. appr. Jennifer Tanios, rep. Debtor)
Docket 52
Parties to apprise the Court of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Movant(s):
U.S. Bank Trust National Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA
From 10/20/20 EH
(Tele. appr. Sean Ferry, rep. creditor HSBC Bank USA)
Docket 38
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FLAGSHIP CREDIT ACCEPTANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Flagship Credit Acceptance)
Docket 8
11 U.S.C. § 362(h) provides in part:
(h)(1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)—
to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
11:00 AM
to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor's intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.
11 U.S.C. § 362(h)(1)(A),(B) (emphasis added).
11 U.S.C. §521(a)(2)(B) sets forth the applicable time to perform the action specified in the statement of intention:
(B) within 30 days after the first date set for the meeting of creditors under section 341(a), or within such additional time as the court, for cause, within such 30-day period fixes, perform his intention with respect to such property, as specified by subparagraph (A) of this paragraph;
11 U.S.C. §521(a)(2)(B). (emphasis added).
Here, although Debtor has selected to retain the Kia by entering into a reaffirmation agreement, there is no evidence of a reaffirmation agreement on the record. As the deadline to perform such intention has passed pursuant to 11 U.S.C. § 521(a)(2)(B), the automatic stay has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Jaime Benitez-Lugo Represented By Carey C Pickford
Movant(s):
Flagship Credit Acceptance LLC Represented By
Sheryl K Ith
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
11:00 AM
MOVANT: TOYOTA LEASE TRUST
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota Lease Trust)
Docket 17
11 U.S.C. § 365 governs the assumption of leases. 11 U.S.C. 365(d)(1) provides that if a lease is not assumed within sixty days of filing the petition, it is deemed rejected. Specifically, the statute states:
In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contract or unexpired lease of residential real property or of personal property of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected.
11 U.S.C. 365(d)(1) (emphasis added).
Consequently, 11 U.S.C. 365(p)(1) provides that such leased property is no longer subject to the stay:
If a lease of personal property is rejected or not timely assumed by the trustee under subsection (d), the leased property is no longer property of the estate and the
11:00 AM
stay under section 362(a) is automatically terminated.
11 U.S.C. 365(p)(1).
Debtor filed his petition on September 4, 2020. As the deadline to assume the lease expired on November 3, 2020, the Toyota is no longer property of the estate.
Accordingly, the stay as to the Toyota is automatically terminated pursuant to 11
U.S.C. 365(p)(1). Therefore, the Court is inclined to DENY the motion as MOOT. APPEARANCES REQUIRED.
Debtor(s):
Jesus Solis Represented By
Edgar P Lombera
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: HLS OF NEVADA
EH
(Tele. appr. Christina Khil, rep. creditor, HLS of Nevada)
Docket 12
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection 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):
Renisha Rena Riggs Represented By Hector Vega
11:00 AM
Movant(s):
HLS of Nevada d.b.a. Nevada West Represented By
Christina J Khil
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: TOYOTA LEASE TRUST
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota Lease Trust)
Docket 7
For the reasons set forth in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Bertha Alicia Aguilera Represented By Ricardo Gomez
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES INC
EH
(Tele. appr. Sheryl Ith, rep. creditor GM Financial)
Docket 8
For the reasons set forth in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection 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):
Roderick Harlan Friloux Represented By Tina H Trinh
11:00 AM
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
(Tele. appr. Vincent Frounjian, rep. creditor, Honda Lease Trust)
Docket 8
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Michel M. Gerges Represented By
Stuart G Steingraber
11:00 AM
Joint Debtor(s):
Meryan A. Soliman Represented By
Stuart G Steingraber
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
(Tele. appr. Vincent Frounjian, rep. creditor, Honda Lease Trust)
Docket 8
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection 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):
Bertha Liza Higareda Represented By Daniel King
11:00 AM
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Also #17
Docket 246
BACKGROUND:
Raymond and Susan Babcock ("Debtors") filed a chapter 11 voluntary petition on December 9, 2010. The Court entered the order confirming Debtors’ fourth amended chapter 11 plan (the "Plan") on July 19, 2012. Dkt. No. 166. On June 28, 2012, the Court entered an order conditioning a discharge on the completion of all plan payments. Debtors filed a motion on June 6, 2013 seeking to modify the Court’s discharge terms. Dkt. No. 185. At the hearing on June 25, 2013, the motion was denied without prejudice. Dkt. No. 197.1
On April 11, 2014, the Court entered a final decree and closed the case.
Debtors reopened the case on November 7, 2020. Now, in the instant motion, Debtors move for a discharge. Dkt. No. 246. The Court notes Debtors have not included a proof of service.
With respect to obtaining a discharge, the Plan, in Section II, page 4 states:
Under this Plan, the Babcocks shall be discharged of liability for payment of debts incurred before confirmation of the Plan, to the greatest extent possible
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as specified in 11 U.S.C. § 1141, unless such liabilities are specified for treatment under this Plan, and then only to the extent of the treatment hereunder. Discharge will be entered with regard to each claim upon the
completion of all payments due under this Plan on account of such claim. The Babcocks reverse the right to move the Court, after notice and hearing, for entry of discharge for cause on an alternative basis and timetable. To the extent that the Babcocks do not currently have in personam liability for such a claim, this Plan does not create any such liability.
Debtors have completed almost all the plan payments. With respect to class 5, payments will be satisfied with the pending sale of the property located at 32815 Kendal Court, Menifee, CA ("Kendal Property") (the subject of Dkt. No. 247). All that remains, thereafter, is the class 4 claim, belonging to Bank of N.Y. Mellon, which consists of mortgage payments amortized over a thirty-year period since 2012 on the property located at 30761 Young Dove Street, Menifee, CA ("Young Dove Property"). Regardless of the outstanding mortgage payments, Debtors assert two alternative grounds in support of an early discharge. Debtors contend they have shown cause pursuant to 11 U.S.C. § 1141(d)(5)(A), and in addition, they have met all the elements under 11 U.S.C. § 1141(d)(5)(B).
DISCUSSION:
11 U.S.C. § 1141(d)(5)(A) provides:
In a case in which the debtor is an individual--
11 U.S.C. § 1141(d)(5)(A) (emphasis added).
As an initial matter, there being no proof of service, the Court determines that the requirement for "notice" has not been met. Accordingly, the Court cannot grant this motion. Notwithstanding, the Court discusses whether Debtors have satisfied the
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requirement for "cause" pending proof of notice.
Scant case law exists to determine what constitutes "cause" under Section 1141(d)(5) (A). The Court has identified two cases that are the most relevant to the issue. First, there is the decision by the court in In re Shreidan, 391 B.R. 287 (Bankr. E.D.N.C.
2008) to grant an early discharge. In doing so, the court stated it was persuaded that cause existed based on "the likelihood that the debtors will make all of their plan payments and the assurance, in the form of collateral, that creditors will receive the amount they have been promised even if the plan payments are not made." Id. at 291.
Additionally, in In re Belcher, the court discusses the legislative intent underlying the "cause" requirement:
More in keeping with the intent of this section would be a determination of "cause" for granting a discharge after payment of the sixty payments to the Distribution Fund to satisfy the obligation of the Plan to general unsecured creditors with dischargeable claims against the debtor, see, e.g., In re
Brown, 2008 WL 4817505, *1 (Bankr.D.D.C. October 29, 2008) ("[T]he plan provides for monthly mortgage payments to continue on the debtor's various mortgage debts. Those payments might last for many years, and ... I do not believe that [§ 1141(d)(5)(A) ] was written with those types of payments to mortgagees in mind."), but prior to completion of payments due on the educational loans or the Debtors' long term mortgage obligations. Such a conclusion avoids the patently unreasonable result noted in Johnson, 402 B.R. at 855, that individual chapter 11 debtors could not obtain a discharge until all such long term obligations had been satisfied, a result which would not conform with chapter 13 practice concerning the timing of the issuance of an order of discharge, but fly directly in its face. Such a determination also protects those creditors whose interests are impaired by the confirmed plan without endangering the interests of those creditors not needing such protection.
In re Belcher, 410 B.R. 206, 217–18 (Bankr. W.D. Va. 2009) (quotations and citations in original).
Here, Debtors present a scenario much like the one discussed by the Belcher court and
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referred to in Johnson. Although Debtors only discuss the need for Susan Babcock to move forward in its showing for cause, it is apparent the contention to move forward rests on the fact that discharge cannot be granted until after all mortgage payments amortized over thirty-years are paid to the class 4 creditor. Debtors have already completed their payments to unsecured creditors; only payments on a mortgage to a secured creditor remain. Like the creditors in In re Sheridan, Bank of N.Y. Mellon is secured by collateral. Additionally, the class 5 creditor remains secured pending the sale of the Kendal Property. Furthermore, it appears Debtors have consistently paid their mortgage. On these facts, the Court finds cause sufficient to grant a discharge pursuant to 11 U.S.C. § 1141(d)(5)(A), and therefore will not consider discharge under 11 U.S.C. § 1141(d)(5)(B).
TENTATIVE RULING:
Debtors to address the "notice" issue. APPEARANCES REQUIRED.
Debtor(s):
Raymond Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
Joint Debtor(s):
Susan Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
Movant(s):
Susan Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
2:00 PM
Also #16
Docket 247
BACKGROUND:
Raymond and Susan Babcock ("Debtors") filed a chapter 11 voluntary petition on December 9, 2010. The Court entered the order confirming Debtors’ fourth amended chapter 11 plan (the "Plan") on July 19, 2012. Dkt. No. 166. On June 28, 2012, the Court entered an order conditioning a discharge on the completion of all plan payments. On April 11, 2014, the Court entered a final decree and closed the case.
Debtors reopened the case on November 7, 2020 and moved for a discharge (Dkt. No. 246) simultaneously with the filing of the instant motion, For Order In Aid of Consummation of Plan. Dkt. No. 247. Debtors have completed almost all the plan payments. Debtors are in the process of satisfying the class 5 secured creditor by selling its security, the property located at 32815 Kendal Court, Menifee, CA ("Kendal Property"). The title company seeks assurance that the junior lien on the Kendal Property, which is held and secured by a deed of trust in Residential Funding Company, LLC ("Creditor") is avoided.
The Court takes judicial notice of a stipulation entered into on December 29, 2011 between Debtors and Creditor, which states, in relevant part:
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The avoidance of Creditor’s Second Deed of Trust is contingent upon the Debtors’ completion of their Chapter 11 plan with regard to Creditor and the Debtors’ receipt of a Chapter 11 discharge.
Dkt. No. 77. An order approving the stipulation was entered on January 18, 2012.
Under the Plan, Creditor’s claim is treated as a Class 7 unsecured claim, bifurcated pursuant to 11 U.S.C. § 506(a), and entitled to a pro rata share of the $60,000 intended for unsecured creditors. This amount has since been distributed.
TENTATIVE RULING:
There being no opposition filed, notice appearing proper, the Court is inclined to GRANT the motion and confirm that upon discharge, as it is the Court’s intention to grant such discharge (See Matter 16 before the Court), the Creditor’s junior lien is AVOIDED.
APPEARANCES REQUIRED.
Debtor(s):
Raymond Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
Joint Debtor(s):
Susan Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
Movant(s):
Susan Babcock Represented By
Ali E Galam - DISBARRED - Stuart J Wald
2:00 PM
Adv#: 6:19-01177 Issa v. Pisano
J. Michael Issa against Anthony Pisano. (13 (Recovery of money/property - 548 fraudulent transfer)) (Ignatuk, Joseph)
From: 2/25/20, 4/28/20, 6/9/20, 7/21/20, 8/25/20, 9/29/20, 11/24/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
Defendant(s):
Anthony Pisano Represented By Scott P Schomer
Plaintiff(s):
J. Michael Issa Represented By Joseph R Ignatuk
2:00 PM
From: 10/13/20, 11/24/20 EH
Docket 253
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
Also #21 EH
(Tele. appr Joshua Franklin rep. Bruce Gordon and Oscar Brambila) (Tele. appr. Jason Komorsky, rep
Docket 816
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
Movant(s):
Visiting Nurse Association of the Represented By
David M Goodrich David M Goodrich Beth Gaschen Beth Gaschen
2:00 PM
Jennifer Vicente Jennifer Vicente Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
Proc. Code § 877.6] Also #20
EH
Docket 822
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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
Ryan W Beall Ryan W Beall Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 9/29/20, 11/24/20 EH
Docket 8
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
Trustee(s):
Caroline Renee Djang Pro Se
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Maria Yesenia Villalba Represented By Arlene M Tokarz
Movant(s):
Wescom Central Credit Union Represented By Letty Ildefonzo
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Defendant's Alicia Aiken's Motion to Reconsider Order granting Trustee Motion to Void Transfer of Equity, and setting aside Debtor's Exemptions
EH
(Tele. appr. Larry Simons, rep. Howard Grobstein, chapter 7 trustee)
Docket 63
On January 23, 2019, Timothy & Esmeralda Aitken ("Debtors") filed a Chapter 7 voluntary petition. On March 3, 2020, Trustee filed a complaint against Debtors’ daughter, Alicia Aitken ("Defendant"), to avoid and recovery a fraudulent transfer. After Defendant failed to respond to the complaint, the Court entered Defendant’s default on April 14, 2020. Since her default was entered, Defendant attempted to file multiple pleadings in the adversary proceeding.
On June 9, 2020, Trustee filed a motion for default judgment. The Court ultimately denied Trustee’s motion without prejudice. On November 23, 2020, Trustee filed a second motion for default judgment, which is set for hearing on December 16, 2020.
In the main bankruptcy case, on November 4, 2020, the Court entered an order
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extending Trustee’s deadline to object to Debtors’ exemptions to February 3, 2021.
On November 10, 2020, Defendant, in the main bankruptcy case, filed a pleading which is titled "Defendant Alicia Aiken’s Motion to Reconsider Order Granting Trustee Motion to Void Transfer of Equity, and Setting Aside Debtor’s Exemptions." On November 19, 2020, Trustee filed an opposition to the motion.
As noted by Trustee "the Motion fails to describe what order Movant is requesting that the Court reconsider. It appears that Movant seeks to dismiss the pending
Complaint brought by the Trustee against her." The Court notes that the transfer that is the subject of the adversary proceeding has not been avoided nor have Debtors’ exemptions been disallowed.
Setting aside the procedurally defectiveness of the motion, the Court agrees with Trustee that Movant’s motion fails on substantive grounds, although for a slightly different reason that that articulated in the opposition. As stated in Mathiason v. Aquinas Home Health Care, Inc., "[o]nce a default is established, defendant has not further standing to contest the factual allegations of plaintiff’s claim for relief." 187 F. Supp. 3d 1269, 1274 (D. Kan. 2016) (emphasis added). But being precluded from presenting evidence does not mean Defendant is precluded from appearing or presenting a purely legal argument. The Court notes that Trustee’s cited case of City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2nd Cir. 2011), does not stand for the proposition that Defendant "lacks the ability to appear." See also 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) ("A default is not an absolute confession of liability. A defaulting party does not admit to facts that are not well-pleaded or to conclusions of law.") (collecting cases); see also Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Here, however, Defendant’s argument is based on the factual assertion that the subject
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transfer was based on fair market value. [Dkt. No. 63, pg. 9, lines 9-10]. This argument fails because: (1) as noted above, Defendant is precluded from presenting evidence; (2) Defendant has not actually presented any evidence in support of her motion; and (3) it would appear Defendant’s request is actually properly characterized as a motion for summary judgment, although Defendant did not follow any of the proper procedural steps in bringing such a motion
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Timothy Mark Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Alicia Aitken Pro Se
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
11:00 AM
Docket 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: $ 1,303.30 Trustee Expenses: $ 36.50
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):
Ramona Garcia Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
(Tele. appr. Benjamin Heston, rep. Debtor)
Docket 22
On November 11, 2019, Mihai Bejerea ("Debtor") filed a Chapter 7 voluntary petition. On February 24, 2020, Debtor received a Chapter 7 discharge. On May 27, 2020, Debtor’s case was closed.
On October 14, 2020, Debtor filed a motion to reopen the case to amend Schedules A & C. On November 5, 2020, the Court set the matter for hearing.
Local Rule 5010-1(b) provides "[a] request for any relief other than the reopening of a case, including relief based upon the grounds for reopening the case, must be made in a separate motion or adversary proceeding, which may be filed concurrently with the motion to reopen."
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Rule 1009(a) provides "[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." 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 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.").
While BAP opinions certainly can be persuasive, this Court has a duty to consider the reasoning detailed in the decision. The Court does not consider the reasoning in 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.
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.").
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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 Debtor will need to do here.
The Court is inclined to GRANT the motion to the extent of REOPENING the bankruptcy case to allow Debtor to file a motion for leave to amend the schedules. If no matter is pending at the expiration of the sixty-day period, the case may be closed without further notice.
APPEARANCES REQUIRED.
Debtor(s):
Mihai Bejerea Represented By Benjamin R Heston
Movant(s):
Mihai Bejerea Represented By Benjamin R Heston
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 17
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: $ 698.50 Trustee Expenses: $ 17.75
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):
Jack Neil Angus III Represented By Edgar P Lombera
Trustee(s):
Larry D Simons (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: $ 1,222.50 Trustee Expenses: $ 143.35
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):
Edmundo Murillo Represented By George P Hobson Jr
Joint Debtor(s):
Maria Cortez Represented By
George P Hobson Jr
Trustee(s):
Robert Whitmore (TR) Pro Se
12:00 PM
From: 10:00 a.m. calendar EH
(Tele. appr. Maria Villalba, Debtor)
Docket 12
- NONE LISTED -
Debtor(s):
Maria Yesenia Villalba Represented By Arlene M Tokarz
Movant(s):
Wescom Central Credit Union Represented By Letty Ildefonzo
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
Also #9
(Tele. appr. Charles Schrader pro se Plaintiff )
Docket 405
On April 18, 2013, Narinder Sangha ("Defendant") filed a Chapter 7 voluntary petition. On April 25, 2013, Charles Schrader ("Plaintiff") filed an adversary complaint against Defendant for non-dischargeability pursuant to 11 U.S.C. § 523(a) (6).
On August 12, 2013, the Court entered its first scheduling order, directing the parties to complete mediation by October 16, 2013; that deadline was ultimately continued to October 29, 2013. On December 4, 2013, the Court entered a second scheduling order, directing the parties to complete mediation by January 31, 2014.
On August 7, 2014, the Court entered an order granting Plaintiff’s motion for summary judgment, and a corresponding judgment. This judgment was appealed, ultimately being vacated and remanded by the Ninth Circuit on March 10, 2017. On
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April 19, 2017, Plaintiff filed a renewed motion for summary judgment which, after several continuances, was ultimately granted in part and denied in part on March 15, 2019 (the "Opinion").
Since the Court issued the Opinion granting partial summary judgment to Plaintiff, the parties have engaged in several discovery disputes, with Defendant switching counsel on multiple occasions during the course of the case. On May 3, 2019, Defendant filed a motion to reopen discovery. As noted by the Court on the hearing of May 22, 2019, the Court had never actually set a discovery deadline, and, therefore, the Court denied the motion. Based upon the discussion with parties at the hearings of May 22, 2019, the Court entered a scheduling order on May 24, 2019. The scheduling order set a discovery deadline of July 31, 2019, and a deadline to file dispositive motions of August 23, 2019.
On July 10, 2019, the Court heard Defendant’s (then pro se) motion to serve additional discovery requests. That motion was denied for the reasons stated on the record at the hearing of July 10, 2019.
On July 30, 2019, Defendant filed a motion to extend discovery cutoff and related dates. On September 3, 2019, the Court granted Defendant’s motion to extend the discovery cutoff to the limited extent of clarifying that discovery need only be propounded, not completed, by July 31, 2019. On September 11, 2019, the Court issued an amended scheduling order. On October 16, 2019, Defendant filed a motion for sanctions against Plaintiff, which the Court ultimately denied.
On October 28, 2019, Defendant filed a motion to reconsider the Opinion, arguing that: (1) the state court judgment was void for failure to properly plead damages; (2) issue preclusion was inappropriate because certain affirmative defenses were neither actually litigated nor necessarily decided; and (3) public policy is not served by application of issue preclusion. On November 12, 2019, Plaintiff filed his opposition. On December 16, 2019, the Court entered an order denying Defendant’s motion for reconsideration.
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On March 11, 2020, Plaintiff filed a motion, which was titled "Motion in Limine on Defendant’s First Affirmative Defense of Privilege." On March 18, 2020, Defendant filed an opposition. On April 1, 2020, the Court orally denied the motion.
On March 31, 2020, Defendant filed a motion for leave to amend his answer to include affirmative defenses of truth and privilege. On April 6, 2020, Plaintiff filed an opposition. The motion was denied pursuant to order entered May 18, 2020
On April 23, 2020, Plaintiff filed the instant "Motion in Limine on Defendant’s Affirmative Defenses" [Dkt. No. 367]. On April 29, 2020, Defendant filed an opposition. The motion was granted pursuant to order entered June 24, 2020.
On July 8, 2020, Plaintiff filed a motion for partial summary adjudication on Defendant’s affirmative defenses. On August 12, 2020, Defendant filed his opposition. The Court granted the motion pursuant to order entered October 15, 2020.
On November 10, 2020, Plaintiff filed the instant Motion in Limine on Defendant’s Witness [Dkt. No. 405]. Plaintiff amended the motion on November 12, 2020, although it appears that the only change in the amended version is the inclusion of Defendant’s witness list, which was previously included in the pre-trial stipulation filed on February 13, 2020. In the instant motion, Plaintiff argues that five of Defendant’s seven witnesses were not timely disclosed during initial disclosures or during discovery. Specifically, Plaintiff contends that Defendant did not disclose these five witnesses: (1) during Rule 26 initial disclosures; (2) in response to written interrogatories issued during August 2013; and (3) in response to interrogatories served during May 2019. Defendant did not file an opposition to the instant motion.
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Fed. R. Civ. P. Rule 26 outlines the litigants’ obligation to disclose certain information. Fed. R. Civ. P. Rule 37(c)(1) states, in pertinent part:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
And the Ninth Circuit has recently stated:
The Federal Rules of Civil Procedure require parties to provide to other parties the name of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses. And a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect, and if the addition or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. A party that does not timely identify a witness under Rule 26 may not use that witness to supply evidence at a trial unless the failure was substantially justified or is harmless. Indeed, Rule 37(c)(1) is intended to put teeth into the mandatory disclosure requirements of Rule 26(a) and (e).
Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 861 (9th Cir. 2014). Factors that the Court may consider include: "(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness." Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
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Here, applying the legal standard set for in Ollier and Woodworker’s Supply, the Court finds that Plaintiff has established caused to preclude Defendant from introducing witnesses who were not timely and properly disclosed. The Court notes that the evidence submitted in support of the motion establishes that Plaintiff took the initiative to prompt Defendant to supplement or amend his discovery responses, and that Defendant did not use the opportunity to disclose the witnesses. Defendant has not offered an adequate explanation to justify the non-disclosure, and, at this late stage of the proceeding, the Court cannot conclude that the error is harmless. See, e.g., Davis v. Green, 2015 WL 3505665 at *3 (N.D. Ga. 2015) ("The Court also finds that the failure to disclose these witnesses is not harmless because Defendant Green did not have the opportunity to depose them and conduct proper discovery."); see also Ollier, 768 F.3d at 862-63 (outlining harm to adversarial system by non-compliance with disclosure requirements).
Finally, the Court deems Defendant’s failure to oppose to be consent to the relief requested pursuant to Local Rule 9013-1(h).
Tentative Ruling:
The Court is inclined to GRANT the motion, prohibiting Defendant from introducing witness testimony from Randy Wissel, James Sutherland, Mark Rappaport, Robert Burns, and Clem Jones.
APPEARANCES REQUIRED.
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
2:00 PM
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi
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: 4/17/19, 5/22/19, 8/28/19, 11/6/19, 1/29/20, 3/4/20, 4/1/20, 4/22/20, 7/1/20, 9/2/20, 9/9/20, 11/18/20
(Holding Date) Also #8
EH
(Tele. appr. Charles Schrader, pro se Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Deepalie M Joshi
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
2:00 PM
Adv#: 6:15-01308 Revere Financial Corporation 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, 11/28/18, 2/27/19,
5/29/19, 8/28/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20, 11/25/20
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):
BWI CONSULTING, LLC Pro Se
Black and White, Inc. Pro Se
BLACK AND WHITE BILLING Pro Se
BLACK AND WHITE INK Pro Se
2:00 PM
MEHRAN DEVELOPMENT Pro Se
Plaintiff(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#: 6:15-01307 Revere Financial Corporation v. OIC MEDICAL CORPORATION, a
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, 12/19/18, 3/27/19, 6/12/19, 7/31/19, Advanced 3/4/20,
11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/28/20, 11/25/20
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
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):
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#: 6:16-01163 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, 4/25/18, 2/27/18, 6/12/19, 1/29/20, 5/27/20, 9/30/20, 10/26/20
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
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
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
From: 4/25/18, 6/13/18, 8/22/18, 10/31/18, 7/31/19, 9/11/19, 11/20/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20, 11/25/20
EH
Docket 82
- NONE LISTED -
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Defendant(s):
Douglas J Roger MD Represented By Summer M Shaw Thomas J Eastmond Marc C Forsythe
Plaintiff(s):
Revere Financial Corporation, a Represented By Franklin R Fraley Jr
Jerry Wang Represented By
2:00 PM
Trustee(s):
Franklin R Fraley Jr Anthony J Napolitano
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
(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, 12/19/18,
3/27/19, 5/8/19, 6/12/19, 7/31/19, 1/29/20, 5/27/20, 7/29/20, 9/30/20, 11/25/20
EH
Docket 333
Debtor(s):
Douglas Jay Roger Represented By Summer M Shaw Marc C Forsythe
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr
2:00 PM
HOLDING DATE
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20, 11/4/20
Also # EH
Docket 40
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
Adv#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20, 11/4/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Defendant(s):
Kenneth Hammond Pro Se
Plaintiff(s):
Robert S. Whitmore Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20, 11/4/20 Also #
EH
Docket 49
- NONE LISTED -
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Movant(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
From: 7/10/18, 2/20/19, 4/24/19, 7/3/19, 7/17/19, 8/21/19, 11/20/19, 1/29/20, 3/25/20, 4/1/20, 4/15/20, 7/1/20, 7/29/20, 10/7/20, 10/14/20
EH
(Tele. appr. Ryan Riddles, rep. Defendant, Vance Johnson)
(Tele. appr. Todd Turoci, rep. Plaintiff, Bankers Health Care Group)
Docket 1
4/15/20
Opposition: None Service: Proper
Pursuant to the stipulation agreement between Bankers Health Care Group, LLC, and Vance Zachary Johnson, the Court GRANTS this stipulation to continue Status Conference to July 1, 2020. A Status Report is due on June 24, 2020.
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):
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) Represented By Monica Y Kim
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20, 6/10/20, 7/1/20, 8/19/20, 9/30/20 Also #
EH
(Tele. appr. Larry Simons rep. Plaintiff, Howard Grobstein)
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
2:00 PM
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 12/11/19, 5/20/20, 7/1/20, 9/30/20, 10/28/20
Also #21 EH
(Tele. appr. Thomas Polis, rep. Plaintiff O'Gara Coach Company)
Docket 1
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
2:00 PM
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:19-01135 O'Gara Coach Company, LLC v. Cardiel
From: 7/1/20, 9/30/20, 10/28/20 Also #20
EH
(Tele. appr. Thomas Polis, rep. Plaintiff O'Gara Coach Company)
Docket 18
- NONE LISTED -
Debtor(s):
Nathaniel James Cardiel Represented By Sevan Gorginian
Defendant(s):
Nathaniel James Cardiel Represented By
W. Derek May
Movant(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
Plaintiff(s):
O'Gara Coach Company, LLC Represented By Thomas J Polis
2:00 PM
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:20-01104 Grobstein v. Torres
$350.00). Complaint for: (1) Avoidance of Actual Fraudulent Transfer [11 U.S.C.
§ 548(a)(1)(A)]; (2) Avoidance of Constructive Fraudulent Transfer [11 U.S.C. § 548(a)(1)(B)]; and (3) Recovery of Avoided Transfer [11 U.S.C. §550] (Attachments: # 1 Adversary Proceeding Cover Sheet) Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Madoyan, Noreen)
From: 7/22/20, 10/28/20 EH
Docket 1
- NONE LISTED -
Debtor(s):
Ana Rosa Lopez Represented By Raymond Perez
Defendant(s):
Joshua Daniel Torres Represented By Raymond Perez
Plaintiff(s):
Howard B Grobstein Represented By Noreen A Madoyan Meghann A Triplett
Trustee(s):
Howard B Grobstein (TR) Represented By
2:00 PM
Noreen A Madoyan Meghann A Triplett
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
From: 3/25/20, 4/1/20 EH
(Tele. appr. Daren Schlecter, rep. Plaintiff Canyon Springs Enterprises)
Docket 1
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A Crowder
Defendant(s):
Marc Anthony Capoccia Pro Se
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
From: 9/2/20, 10/7/20, 10/14/20 Also #25
EH
(Tele. appr. John Dickman, rep. Plaintiff Greg Thompson) (Tele. appr. Niels Torring, Defendant pro se)
Docket 1
- NONE LISTED -
Debtor(s):
Niels Erik Torring Pro Se
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Plaintiff(s):
Greg Thompson Represented By John G Dickman
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
Also #24 EH
(Tele. appr. John Dickman, rep. Plaintiff Greg Thompson) (Tele. appr. Niels Torring, Defendant pro se)
Docket 11
On February 25, 2020, Niels & Sonja Torring (collectively, "Debtors") filed a pro se Chapter 7 voluntary petition. On July 10, 2020, Debtors received a Chapter 7 discharge.
On July 1, 2020, Greg Thompson ("Plaintiff") filed a complaint against Niels Thompson ("Defendant") to determine dischargeability of debt pursuant to 11 U.S.C.
§ 523(a)(2)(A), (a)(4), and (a)(6). On August 10, 2020, the clerk entered Defendant’s default.
2:00 PM
On September 18, 2020, Plaintiff filed a motion for default judgment. On October 2, 2020, Defendant filed a pro se pleading, which appears to be an answer, but could also be construed as an opposition to the motion for default judgment. The pleading alleges that the adversary complaint fails to state a claim and is barred by the statute of limitations.
On October 14, 2020, the Court held a hearing on the motion for default judgment. The Court noted that the meeting of creditors was originally set for April 2, 2020, and, therefore, the complaint appeared to have been filed untimely pursuant to FED. R. BANKR. P. Rule 4007(c). The Court continued the matter for supplemental briefing.
On November 3, 2020, Plaintiff filed his supplemental brief. Plaintiff argued, inter alia, that the Court extended the deadline to file a non-dischargeability complaint in this case and that Defendant lacked standing to present affirmative defenses. On November 18, 2020, Defendant filed his pro se opposition brief, reiterating his position that the complaint was filed untimely and requesting that his "answer" be permitted to be filed late.
Plaintiff’s argument that the Rule 4007 deadline has been extended in this case is based on Judge Tighe’s General Order 20-03, dated March 23, 2020. Paragraph 5 of General Order 20-03 purported to extend the Rule 4007(c) deadline for cases in which the original meeting of creditors was scheduled between March 17, 2020 and April 10, 2020, with the new deadline being calculated from the re-set meeting of creditors. In Debtor’s case, the meeting of creditors originally set for April 2, 2020, was re-set for May 5, 2020 pursuant to a notice entered on April 6, 2020. As a result, the Court concludes that Plaintiff is correct that the Rule 4007 deadline in this case was extended (to July 6, 2020), and, therefore, that the instant complaint was timely filed.
The Court now turns to the merits of Plaintiff’s motion for default judgment.
2:00 PM
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, Defendant was served at 24317 Songsparrow Ln., Corona, CA 92883, the address listed by Defendant on his bankruptcy petition. Therefore, it appears that 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: (1) 11 U.S.C. § 523(a)(2)(A); (2)
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11 U.S.C. § 523(a)(4); and (3) 11 U.S.C. § 523(a)(6).
Regarding the first cause of action, the elements of a § 523(a)(2)(A) claim are: (1) the debtor made representations; (2) that at the time debtor knew the representations were false; (3) that debtor made the representations 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 misrepresentations having been made. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
Here, the Court concludes that the complaint does not contain sufficiently detailed allegations to warrant judgment on a § 523(a)(2)(A) cause of action. Specifically, the only factual representation that the complaint appears to allege was false was that Defendant was a licensed broker of automobiles. The complaint, and the instant motion for default judgment, however, do not meet the heightened pleading standards associated with pleading fraud. Instead, the complaint, and the declaration of Plaintiff attached to the motion for default judgment, simply state that Defendant led Plaintiff to believe that Defendant was a licensed broker of automobiles, and do not contain the requisite supporting details. See, e.g., Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014) ("While the precise level of particularity required under Rule 9(b) depends upon the facts of the case, the pleading ‘ordinarily requires describing the who, what, when, where, and how of the fraud.’").
Regarding 11 U.S.C. § 523(a)(4), the complaint appears to allege that Defendant embezzled funds from Plaintiff. The elements of an embezzlement claim are: "(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).
Here, while the complaint does contain allegations regarding the first and third elements of an embezzlement claim, the complaint does not, at any point, allege that Defendant appropriated money or property of Plaintiff "to a use other than which it was entrusted."
2:00 PM
Regarding 11 U.S.C. § 523(a)(6), a claim for willful and malicious injury, the willfulness requirement is met when "the debtor subjectively intended to cause injury to the creditor or the debtor subjectively believed that the injury was substantially certain to occur to the creditor as a result of her actions." In re Chunchai Yu, 2016 WL 4261655 at *3 (B.A.P. 9th Cir. 2016). "The [d]ebtor is charged with the knowledge of the natural consequences of his actions." In re Ormsby, 591 F.3d 1199, 1207 (9th Cir. 2010). "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 Jercich, 238 F.3d 1202, 1209 (9th Cir. 2001).
Here, the allegations do not appear to be sufficiently pled to meet the § 523(a)(6) standards. For example, Plaintiff has obtained a state court judgment that found that Defendant "demonstrated a conscious disregard for the rights and property of the plaintif." But "acts in conscious disregard of another’s rights or safety [] fail to satisfy the requisite state of mind for § 523(a)(6) willfulness." In re Plyam, 530 B.R. 456, 465 (B.A.P. 9th Cir. 2015). Nor is it clear that any of the allegations present in the complaint rise to the level of maliciousness. See, e.g., In re Jercich, 238 F.3d 1202, 1206 (9th Cir. 2001) ("We therefore hold that to be excepted from discharge under
§ 523(a)(6), a breach of contract must be accompanied by some form of ‘tortious conduct.’").
For the foregoing reasons, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Niels Erik Torring Pro Se
2:00 PM
Defendant(s):
Niels Erik Torring Pro Se
Joint Debtor(s):
Sonja Haupt Torring Pro Se
Movant(s):
Greg Thompson Represented By John G Dickman
Plaintiff(s):
Greg Thompson Represented By John G Dickman
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01151 Chaffey Federal Credit Union v. Bomar, Jr.
EH
From: 11/4/20
(Tele. appr. Lysa Simon, rep. Plaintiff Chaffey Federal Credit Union)
Docket 1
- NONE LISTED -
Debtor(s):
Russell Ray Bomar Jr. Represented By Neil R Hedtke
Defendant(s):
Russell Ray Bomar Jr. Represented By
A. Lysa Simon
Plaintiff(s):
Chaffey Federal Credit Union Represented By
A. Lysa Simon
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
*Another Summons issued 10/14/20 From: 11/25/20
EH
(Tele. appr. John Sarai rep. Defendant, Donyel Beatrice Johnson) (Tele. appr. J. Phillips, pro se Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Donyel Betrice Johnson Represented By John D Sarai
Defendant(s):
Donyel Betrice Johnson Represented By John D Sarai
Plaintiff(s):
Phillips Chiropractic, Inc. Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
11:00 AM
Docket 14
- NONE LISTED -
Debtor(s):
Elgitha B Baldonado-Ranosa Represented By Charles W Daff
Movant(s):
Elgitha B Baldonado-Ranosa Represented By Charles W Daff Charles W Daff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor)
Docket 128
On June 17, 2015, Tracy Lynn Crooks ("Debtor") filed a Chapter 13 voluntary petition. On August 4, 2015, Debtor’s Chapter 13 plan was confirmed, and subsequently modified increasing the percentage to unsecured creditors to 100%.
On December 14, 2015, Education Loan Solutions, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $4,436.30 ("Claim 7"). On October 30, 2020, Debtor filed the instant motion objecting to Claim 7. Debtor argues that there is nothing outstanding owed on Claim 7, and in any event, it was filed late because the deadline for filing claims was October 26, 2015.
Debtor explains that $1,521.34 was already paid and thus this amount should be deemed allowed; however, with respect to the remaining $2,914.96, that amount should be disallowed. Trustee has already sent this amount to the Court’s unclaimed funds registry on August 5, 2020.
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
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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.
With respect to disallowing an untimely filed claim, 11 U.S.C. § 502(b)(9) provides:
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 –
(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
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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.
FED. R. BANKRP. P. Rule 3002(c) provides that the deadline for filing claims in a Chapter 13 case is 70 days after the order for relief; in this case that date was October 26, 2015. None of the exceptions in 11 U.S.C. § 502(b)(9) or Rule 3002(c) being applicable to this case, Claim 7 was filed late.
Furthermore, "the 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).
Finally, the Court notes that service was proper and no opposition was filed, 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 7.
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):
Tracy Lynne Crooks Represented By Steven A Alpert
11:00 AM
Movant(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
$1946.00, Expenses: $0.00 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor)
Docket 66
- NONE LISTED -
Debtor(s):
Jonathon Keith Stoner Represented By Sundee M Teeple
Joint Debtor(s):
Jacqueline Belinda Stoner Represented By Sundee M Teeple
Movant(s):
Jonathon Keith Stoner Represented By Sundee M Teeple Sundee M Teeple
Jacqueline Belinda Stoner Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor)
Docket 43
On July 19, 2019, Joseph and Regina Bellotti ("Debtors") filed a Chapter 13 voluntary petition. Debtors’ Chapter 13 plan was confirmed on November 8, 2019.
On September 23, 2019, LVNV Funding, LLC ("Claimant") filed a proof of claim in the amount of $1,356.78 ("Claim 21"). On November 4, 2020, Debtors filed this instant motion objecting to Claim 21. Debtors argue that under California law, C.C.P. § 337, Claim 21 is barred by the statute of limitations, as the last payment on the contract was made on June 5, 2008, over four years prior to the filing of the petition.
A proof of claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). 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.
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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.
Pursuant to 11 U.S.C. § 502(b)(1) claim objections may be based on non-bankruptcy law. § 502(b)(1) provides:
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;
11 U.S.C. § 502(b)(1) (emphasis added). Accordingly, "[a] claim cannot be allowed if it is unenforceable under non-bankruptcy law." Diamant v. Kasparian (in re Southern Cal. Plastics, Inc.), 165 F.3d 1243, 1247 (9th Cir. 1999).
Here, pursuant to the applicable non-bankruptcy law, C.C.P. § 337, Claim 21 is barred
11:00 AM
by the four-year statute of limitations, as the last payment was made over twelve years ago. Therefore, the Court is inclined to find that Debtors have met their burden in objecting to the validity of the claim.
Further, the Court notes that service was proper and no opposition was filed, 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 21.
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 Bellotti Represented By Paul Y Lee
Joint Debtor(s):
Regina Bellotti Represented By Paul Y Lee
Movant(s):
Joseph Bellotti Represented By Paul Y Lee
Regina Bellotti Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Terrence Fantauzzi, rep. Debtor)
Docket 59
- NONE LISTED -
Debtor(s):
Michelle R. Rayner Represented By Terrence Fantauzzi
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor)
Docket 33
12/3/2020
On October 4, 2019, Phat M. Khamkathok ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s Chapter 13 plan was confirmed on January 15, 2020.
On September 23, 2019, Cavalry SPVI, LLC as assignee or Capital One Bank (USA),
N.A. ("Claimant") filed a proof of claim in the amount of $1,964.81 ("Claim 1"). On November 3, 2020, Debtor filed this instant motion objecting to Claim 1. Debtor argues that under California law, C.C.P. § 337, Claim 1 is barred by the statute of limitations, as the last payment on the credit card was made on April 8, 2011, over four years prior to the filing of the petition.
A proof of claim is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). 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.
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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.
Pursuant to 11 U.S.C. § 502(b)(1) claim objections may be based on non-bankruptcy law. § 502(b)(1) provides:
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;
11 U.S.C. § 502(b)(1) (emphasis added). Accordingly, "[a] claim cannot be allowed if it is unenforceable under non-bankruptcy law." Diamant v. Kasparian (in re Southern Cal. Plastics, Inc.), 165 F.3d 1243, 1247 (9th Cir. 1999).
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Here, pursuant to the applicable non-bankruptcy law, C.C.P. § 337, Claim 1 is barred by the four-year statute of limitations, as the last payment was made over eight years ago. Therefore, the Court is inclined to find that Debtors have met their burden in objecting to the validity of the claim.
Further, the Court notes that service was proper and no opposition was filed, 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 1.
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):
Phat M Khamkathok Represented By Paul Y Lee
Movant(s):
Phat M Khamkathok Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #8
From: 10/19/20 EH
Docket 33
The Court, having reviewed the motion, notice appearing proper and no opposition having been filed, is inclined to GRANT the motion, AVOIDING the lien of Household Finance Corporation of California conditioned upon completion of the Chapter 13 plan.
APPEARANCES REQUIRED.
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Movant(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7 EH
Docket 0
- NONE LISTED -
Debtor(s):
Rebecca R Banuelos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 0
- NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joshua Mendelsohn, rep. creditor, The Marino Valley Ranch Community Association)
Docket 19
- NONE LISTED -
Debtor(s):
Ethel Ntom Odimegwu Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 14
- NONE LISTED -
Debtor(s):
Maria Barreto Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Gail Flot Greenhouse Represented By Jeremiah D Raxter
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Charles Edward Nathanie Wright Represented By
April E Roberts
Joint Debtor(s):
Malika Unami Wright Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Joselina Medrano, rep. Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
Deborah Lynn Mullenix Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. James Hornbuckle, rep. Debtor)
Docket 16
- NONE LISTED -
Debtor(s):
David M. Rodarte Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Craig M. Brewer Represented By Terrence Fantauzzi
Joint Debtor(s):
Rebecca J. Brewer Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Erin McCartney rep. creditor, Broker Solutions, Inc. dba American Funding)
(Tele. appr. Donna Travis, rep. Debtors)
Docket 2
- NONE LISTED -
Debtor(s):
Ernesto Ibarra Represented By Dana Travis
Joint Debtor(s):
Maria Ibarra Represented By
Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Nancy Clark, rep. Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
Gabrielle Mendoza Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. apr. Anthony Vigil, rep. Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
Marisol Smith Represented By Anthony B Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Donna Travis, rep. Debtors)
Docket 2
- NONE LISTED -
Debtor(s):
James Henry House III Represented By Dana Travis
Joint Debtor(s):
Adria Ann House Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Justin Harelik, rep. Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
Reggina Louise Gaines Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 15
- NONE LISTED -
Debtor(s):
Cheryl Linda Fernandez Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Robert Firth, rep. Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
Jana Darlene Gentry Represented By Robert L Firth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 121
- NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Angelica Gonzalez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor)
Docket 59
- NONE LISTED -
Debtor(s):
Valecia Renee Knox Represented By
L. Tegan Rodkey
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 99
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Natalie Alvarado, rep. Debtors)
Docket 52
- 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 76
- 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
11:01 AM
Docket 75
- 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
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Donna Travis, rep. Debtors)
Docket 99
- 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 79
- 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
11:01 AM
EH
Docket 71
- NONE LISTED -
Debtor(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 104
- NONE LISTED -
Debtor(s):
Daniel Javier Garcia Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 96
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor)
Docket 91
- NONE LISTED -
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Charles Dennis West Represented By Erika Luna
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Linda Foster Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Nancy Korompis, rep. Debtor)
Docket 51
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor)
Docket 43
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
(OST entered 11/30/20) EH
(Tele. appr. Gordon Dayton, rep. Debtor) (Tele. appr. Kiia Wilson, pro se Debtor)
(Tele. appr. Nancy Lee, creditor, Roshmore Loan Management Services LLC)
Docket 84
- NONE LISTED -
Debtor(s):
Kiia Chree Wilson Represented By Gordon L Dayton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAW OFFICES OF VAN NGHIEM
[OST signed on 11/23/20]
CASE DISMISSED 11/23/20
EH
(Tele. appr. Van Nghiem, rep. lien holder, Van Nghiem) (Tele. appr. Anthony Cara, rep. Debtor)
Docket 16
On November 3, 2020, Olga Monique De Gonzalez ("Debtor") filed a pro se, skeletal Chapter 13 petition. Debtor had previously obtained a discharge in a Chapter 7 proceeding on January 6, 2020.
On November 20, 2020, Van Nghiem ("Creditor") filed a motion for relief from stay together with an application shortening time. On November 23, 2020, the Court approved Creditor’s application shortening time, setting a hearing for December 9, 2020.
Later on November 23, 2020, Debtor’s case was dismissed for failure to file case commencement documents. On December 7, 2020, Debtor retained an attorney and
11:00 AM
filed a motion to vacate dismissal. Debtor’s motion to vacate dismissal has not yet been adjudicated.
Creditor is an attorney who represented Debtor between 2015 and 2017. Debtor accumulated $53,548 in unpaid attorney fees during this representation, and, in September 2017, Creditor filed a lawsuit against Debtor for breach of contract. On November 17, 2017, Creditor was issued a judgment in the amount of $54,083.71. On May 1, 2018, Creditor recorded the abstract of judgment in San Bernardino County, where Debtor owned property located at 230-232 Millard Ave., Rialto, CA 92376 (the "Property").
Creditor asserts that shortly after she filed a lawsuit against Debtor, Debtor transferred the Property to her daughter for no consideration. Subsequently, Debtor’s daughter took a loan against the Property in the amount of $160,000; the deed was not recorded until August 16, 2018. On February 24, 2018, Debtor’s daughter then transferred the Property back to Debtor.
Creditor then brought a fraudulent transfer action against Debtor and her daughter. On August 14, 2020, judgment was entered in Creditor’s favor in San Bernardino state court.
Additionally, Creditor initiated judicial foreclosure proceedings against the Property in April 2019. Creditor asserts that Debtor waited until the day of the hearing to oppose the sale, requested a continuance, and the filed a Chapter 7 bankruptcy the day before the continued sale date. The Chapter 7 trustee appears to have contemplated selling the Property during the Chapter 7 proceeding, but ultimately did not do so.
Creditor obtained relief from stay to continue with her state court litigation on March 11, 2020. Subsequently, the judicial foreclosure of the Property was set for July 2, 2020.
On June 10, 2020, Creditor asserts that she received a notice of trustee’s sale by the mortgagee, which was set for July 7, 2020. This sale was apparently continued on at least one occasion for reasons that are not fully clear from the motion. Ultimately, it appears that the sale of the Property was going to take place on October 27, 2020, but Debtor requested a TRO on the day of the sale. The TRO was ultimately denied, but the sale was postponed one week regardless. The morning of the continued sale date,
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November 3, 2020, Debtor filed the instant bankruptcy petition. Debtor’s case is currently dismissed, and Creditor’s judicial sale is currently scheduled for December 16, 2020.
The instant bankruptcy case having been dismissed, the automatic stay has expired pursuant to 11 U.S.C. §362(c)(1). Therefore, the Court is inclined to: (1) GRANT the request in ¶ 4, confirming that the automatic stay is not in effect; and (2) DENY the requests for relief under § 362(d)(1)-(3) and ¶ 2 as MOOT.
The Court, having considered Creditor’s request for relief under § 362(d)(4), finds that it is not completely clear that that provision quite fits the instant situation.
Specifically, section 362(d)(4) requires either: (1) an unauthorized transfer of real property; or (2) multiple bankruptcy filings affecting the property. Here, however, the transfers noted by Creditor occurred before Creditor recorded her abstract of judgment, and the only previous bankruptcy filing affecting the Property resulted in a Chapter 7 discharge. Filing a Chapter 20 case (a Chapter 7 case followed shortly thereafter by a Chapter 13 case) is a relatively common occurrence, and would not appear to normally trigger the "multiple bankruptcy filings affecting such real property" contemplated by § 362(d)(4)(B). Here, there are multiple bankruptcy filings that delayed Creditor’s foreclosure sale, and the Court has been presented with evidence establishing that the instant filing was "part of a scheme to delay, hinder, or defraud creditors." Thus, the Court is inclined to GRANT creditor relief from stay under § 362(d)(4) and GRANT waiver of the Rule 4001(a)(3) stay.
Creditor’s final request, ¶ 11, is extraordinary relief that the Court rarely, if ever, grants. Here, it would appear that relief under § 362(d)(4) is more than sufficient for Creditor’s purposes and, therefore, the Court does not find cause to grant the request under ¶ 11.
APPEARANCES REQUIRED.
Debtor(s):
Olga M De Gonzalez Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. appr. Reid Winthrop, rep. Planitiff, Morschauser)
Docket 365
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
1:00 PM
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
conversion; 2 constructive trust; 3 unjust enrichment; 4 an accounting; 5 declaratory relief; and 6 primary and secondary indemnification and contribution by American Business Investments , Jesse Bojorquez against Stephen Collias , Continental Capital LLC
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20, 11/10/20
EH
Docket 29
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
1:00 PM
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20, 11/10/20
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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman
1:00 PM
Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 379
- 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
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
1:00 PM
Cara J Hagan Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
Docket 364
- 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):
Mohammed Abdizadeh Pro Se
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By
1:00 PM
Lawrence J Kuhlman Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Movant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Continental Capital LLC Represented By Cara J Hagan
Continental Capital LLC Represented By Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 56
- NONE LISTED -
Debtor(s):
Joshua Michael Thomson Represented By Edward G Topolski
Joint Debtor(s):
Katherine Naomi Thomson Represented By Edward G Topolski
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 59
- NONE LISTED -
Debtor(s):
Joe A Pickens II Represented By William Radcliffe
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Austin P. Nagel, rep. creditor, Nisan Motor Acceptance Corp.)
Docket 62
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 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):
Michael Colbus Represented By Andy Nguyen
Joint Debtor(s):
Lisa Colbus Represented By
Andy Nguyen
11:00 AM
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONS DIRECT MORTGAGE, LLC
From: 11/17/20 EH
Docket 62
- NONE LISTED -
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Movant(s):
Nations Direct Mortgage, LLC Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
(Tele. appr. Sanaz Bereliani, rep. Debtors)
(Tele. appr. Darlene Vigil, rep. creditor, Lakeview Loan Servicing LLC)
Docket 72
Movant to apprise the Court of the status of arrears and parties to apprise the Court of the status of adequate protection discussions, if any.
APPEARANCES REQUIRED.
Debtor(s):
Juan Carlos De La Cruz Represented By
Sanaz Sarah Bereliani
Joint Debtor(s):
Claudia Veronica De La Cruz Represented By
Sanaz Sarah Bereliani
11:00 AM
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARRINGTON MORTGAGE SERVICES, INC.
From: 11/17/20 EH
Docket 45
- NONE LISTED -
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Movant(s):
CARRINGTON MORTGAGE Represented By Christopher Giacinto Diana Torres-Brito Julian T Cotton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 11/17/20 EH
(Tele. appr. Robert Chen, rep. Debtor)
Docket 34
- NONE LISTED -
Debtor(s):
Edward Dwayne Lott Represented By
Raj T Wadhwani
Movant(s):
U.S. Bank National Association, not Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
(Tele. appr. Dane Exnowski, rep. moving party Freedom Mortgage Corporation)
Docket 41
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶ 2
-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):
Armando Guzman Represented By Daniel King
11:00 AM
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HSBC BANK USA
From 10/20/20,12/1/20 EH
Docket 38
- NONE LISTED -
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Movant(s):
HSBC Bank USA, N.A. Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 12/3/20 EH
(Tele. appr. Gordon Dayton, rep. Debtor)
(Tele. appr. Nancy Lee, rep. creditor, Rushmore Loan Management Services, LLC)
Docket 84
- NONE LISTED -
Debtor(s):
Kiia Chree Wilson Represented By Gordon L Dayton
Movant(s):
Kiia Chree Wilson Represented By Gordon L Dayton
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
(Tele. appr. Marc Lieberman, rep. John Larson)
(Tele. appr. Debbie Perez, rep. Trustee, David Goodrich)
Docket 509
On May 11, 2016, Allied Injury Management, Inc. ("Debtor") filed a Chapter 11 voluntary petition. On December 5, 2016, the Court entered an order appointing David Goodrich as Chapter 11 Trustee.
On November 20, 2020, Netreva, Inc. ("Creditor") filed a motion for allowance and payment of an administrative claim. Creditor’s claim is related to information technology services provided to Debtor between December 2016 and October 2017.
On December 1, 2020, Trustee filed a response to Creditor’s motion. Trustee’s response does not oppose Creditor’s request for an administrative claim in the amount of $12,904.33, but, instead, Trustee asserts that the claim should not be paid at the instant time because the estate may be administratively insolvent. The response also states that: "Trustee believes that he has reached an agreement with Netreva on this
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issue, and that Netreva will agree to drop the portion of the Motion requesting an order requiring immediate payment of its administrative claim, provided that the administrative claim is allowed in the requested amount." [Dkt. No. 512, pg. 2, lines 8-11].
11 U.S.C. § 503(b)(1)(A) provides:
After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including –
(A) the actual, necessary costs and expenses of preserving the estate
The Ninth Circuit test for § 503(b)(1)(A) is that the expense "(1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefitted the estate." In re Dak Indus., 66 F.3d 1091, 1094 (9th Cir. 1995).
Here, Creditor asserts that it provided postpetition information services at the request of Debtor and, later, Trustee. Furthermore, Creditor asserts that "Debtor and the Estate required these services to continue and maintain its business operations." As a result, and noting the lack of opposition and Trustee’s explicit support for the allowance of Creditor’s requested administrative claim, the Court is inclined to allow an administrative claim in the amount of $12,904.33
The Court agrees, however, that immediate payment of Creditor’s claim is not
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appropriate at this time, given Trustee’s assertion that "it appears that this estate is administratively insolvent." Therefore, because Creditor may be required to later disgorge payment to allow for pro rata distribution to administrative claimants, the Court is not inclined to direct payment at this time.
The Court is inclined to GRANT the motion to the extent of allowing Netreva, Inc. an administrative claim in the amount of $12,904.33.
APPEARANCES REQUIRED.
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
(Tele. appr. Robert Opera, rep. Debtor)
Docket 277
- NONE LISTED -
Debtor(s):
Integrated Wealth Management Inc Represented By
Andrew B Levin Robert E Opera Jim D Bauch
2:00 PM
From: 10/23/18, 11/27/18, 1/29/19, 3/5/19, 6/11/19, 8/20/19, 10/29/19, 1/28/20, 2/4/20, 3/31/20, 4/21/20, 8/25/20, 11/17/20
Also #13 & #13.1 EH
(Tele. appr. Eric Bensamochan, rep. Debtor)
Docket 96
- NONE LISTED -
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
From: 10/13/20, 11/24/20, 12/01/20
Also #12 & #13.1 EH
(Tele. appr. Eric Bensamochan, rep. Debtor)
Docket 253
Fed. R. Bankr. P. 3022 states:
After an estate is fully administered in a chapter 11 reorganization case, the court, on its own motion or on motion of a party in interest, shall enter a final decree closing the case.
The Advisory Committee Notes provide that "entry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed." The factors to consider are:
whether the order confirming the plan has become final, (2) whether deposits required by the plan have been distributed, (3) whether the property proposed by the plan to be transferred has been transferred, (4) whether the debtor or the successor of the debtor under the plan has assumed the business or the management of the property dealt with by the plan, (5) whether
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payments under the plan have commenced, and (6) whether all motions, contested matters, and adversary proceedings have been finally resolved.
Fed. R. Bankr. P. 3022 advisory committee’s note (1991).
Here, the order confirming Debtor’s plan is final. Debtor has sold the property located at 3095 Ocelot Circle, Corona, CA and begun making plan payments. Debtor asserts he will complete his plan payments with the funds from the proceeds of sale and the income currently generated by his business, Carla’s Café. There are no remaining contested or adversary matters to be resolved.
The Court, having reviewed the motion and finding Debtor’s evidence sufficient, is inclined to GRANT the motion for entry of final decree.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
Movant(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
$31.00
Also #12 & #13 EH
(Tele. appr. Eric Bensamochan, rep. Debtor)
Docket 260
On January 9, 2018, Jose de Jesus Hernandez ("Debtor") filed a Chapter 11 voluntary petition. On February 7, 2020, the Court entered an order approving Debtor’s second amended disclosure statement. On April 23, 2020, the Court entered an order approving Debtor’s second amended Chapter 11 plan.
On February 2, 2018, the Court entered an order approving the employment of Eric Bensamochan ("Counsel") as counsel for Debtor. On June 7, 2018, Counsel was awarded $26,476.50 in fees and expenses for services provided through May 11, 2018.
On November 12, 2020, Counsel filed a final fee application, requesting an additional
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$37,631 in fees and expenses.
The Court applies 11 U.S.C. § 330(a) to its review of Counsel’s application for compensation. 11 U.S.C. § 330 provides:
11 U.S.C. § 330(a)(1)-(6) provides:
(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103 –
reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and
reimbursement for actual, necessary expenses.
The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested.
In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including –
the time spent on such services;
the rates charged for such services;
whether the services were necessary to the administration of, or beneficial at the time at which the
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service was rendered toward the completion of, a case under this title;
whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title.
(4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for –
unnecessary duplication of services; or
services that were not –
reasonably likely to benefit the debtor’s estate; or
necessary to the administration of the case. . . .
The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.
More specifically, when examining an application for compensation, the Court should consider the following questions:
First, were the services authorized? Second, were the services necessary or beneficial to the administration of the estate at the time they were rendered? Third, are the services adequately documented? Fourth, are the fees requested reasonable, taking into consideration the
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factors set forth in § 330(a)(3)? Finally, in making this determination, the court must take into consideration whether the professional exercised reasonable billing judgment. As stated in In re Riverside- Linden Inv. Co., 925 F.2d 320, 321 (9th Cir. 1991), "when a cost benefit analysis indicates that the only parties who will likely benefit from a service are the trustee and his professionals," the service is unwarranted and a court does not abuse its discretion in denying fees for those services.
In re Mednet, 251 B.R. 103, 1089-09 (B.A.P. 9th Cir. 2003) (citation and footnote omitted).
Here, the Court notes that no party has opposed Counsel’s application for compensation, which the Court deems consent to the relief requested pursuant to Local Rule 9013-1(h). The Court, having review the application for compensation, finds that the services provided were: (1) authorized; (2) necessary or beneficial to the administration of the estate; (3) adequately documented; and (4) generally reasonable pursuant to the standards of § 330(a)(3).
The Court is inclined to APPROVE the application in its entirety, awarding Counsel
$37,600 in fees and $31 in costs.
APPEARANCES REQUIRED.
Debtor(s):
Jose De Jesus Hernandez Represented By
Eric Bensamochan
2:00 PM
2:00 PM
Also #15 & 16 EH
(Tele. appr. Joshua Franklin, rep. Bruce Gordon and Oscar Brambila) (Tele. appr. David Goodrich, rep. Debtor)
(Tele. appr. Michael Leboff, rep. Maria Lozzano)
(Tele,. appr. Yaniv Newman, rep. Furman L. Beckman, G. Ptasinski) (Tele. appr. Jolene, Tanner, rep. United States of America)
(Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jason Komorsky, rep. interested party, Visiting Nurse Association of the Inland Counties)
Docket 857
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor"), a not-for-profit home health services organization in the Inland Empire, filed a Chapter
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11 voluntary petition. Debtor’s disclosure statement was approved by Court order entered September 17, 2020. Debtor’s Chapter 11 plan was confirmed after a hearing held on November 17, 2020.
On May 16, 2019, Debtor filed an application to employ Brutzkus Gubner ("Applicant") as special litigation counsel. The pertinent terms of the compensation arrangement provided that Applicant would receive: (a) 1/3 of any gross recovery obtained prior to the filing of a complaint; (b) 40% of any gross recovery obtained after the filing of a complaint but more sixty days before trial; or (c) 50% of and gross recovery obtained within sixty days of trial. The application also provided that Applicant would receive actual and necessary costs and expenses. On June 12, 2019, the Court set a hearing on the application. On June 18, 2019, Applicant filed a supplemental application. After a hearing held on June 26, 2019, the Court approved the application on June 27, 2019.
On July 14, 2020, Applicant filed a complaint against a variety of former offices and directors of Debtor for breach of fiduciary duty. Subsequently, the parties to the adversary proceeding engaged in mediation with former judge Jay Gandhi. The parties ultimately agreed to a settlement, which contained a cash payment to Debtor in the amount of $3.75 million. A continued hearing on the underlying settlement agreement is set for hearing at the same time as the instant application.
On December 2, 2020, the Court approved a stipulation between Applicant, the IRS, and the Committee of Creditors Holding Unsecured Claims (the "Committee") that provided the IRS and the Committee an additional two days to object to the application. On December 3, 2020, the parties filed another stipulation. While this second stipulation has not been approved by the Court, the stipulation provides that Applicant would reduce its requested fees by $150,000 (from $1.5 million to $1.35 million) and that that carve-out would be divided equally between priority unsecured creditors and general unsecured creditors.
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11 U.S.C. § 328(a) provides:
The trustee, or a committee appointed under section 1102 of this title, with the court’s approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions.
Applicant points out that Ninth Circuit authority has stated: "There is no question that a bankruptcy court may not conduct a § 330 inquiry into the reasonableness of the fees and their benefit to the estate if the court already has approved the professional’s employment under 11 U.S.C. § 328." In re B.U.M. Intern., Inc., 229 F.3d 824, 829 (9th Cir. 2000). While there is not extensive caselaw detailing the § 328 standard, the Second Circuit has stated the following:
Under section 328(a), a pre-approved fee arrangement may only be altered if proven "to have been improvident in light of developments not capable of being anticipated at the time" of the pre-approval. Surprisingly few cases have construed this language, but those that have make it evident that it is a high hurdle to clear. According to the Fifth Circuit, section 328(a) requires "the bankruptcy court . . . to determine whether developments, which made the approved fee plan improvident, had been incapable of anticipation at the time the award was approved." See In re Barron, 325 F.3d 690, 693 (5th Cir. 2003). For example, simply because the size and scope of a settlement had not actually been anticipated, it does not follow that it was incapable of anticipation. Similarly, the fact that contingency fees may appear
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excessive in retrospect is not a ground to reduce them because early success by counsel is always a possibility capable of being anticipated.
In re Smart World Tech., LLC, 552 F.3d 228, 234-35 (2nd Cir. 2009) (citation, emphasis, and quotation omitted).
Here, the Court has not been presented with any evidence that the terms pre-approved by the Court are "improvident" based upon developments "incapable of anticipation at the time" the Court approved the terms.
The Court notes that the instant applications does not comply with a variety of the local rule provisions regarding professional fee applications, namely Local Rule 2016-1(a)(1)(D), (H), and (K). The Court notes that while the requirements of Local Rule 2016-1(a)(1)(E)-(G) do not apply to contingency fee arrangements, the remainder of Local Rule 2016-1(a) is still applicable.
The Court is inclined to APPROVE the application as modified by the stipulation filed on December 3, 2020 as docket number 879.
APPEARANCES REQUIRED.
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen
2:00 PM
Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
2:00 PM
Also #14 & #16 EH
(Tele. appr. Joshua Franklin, rep. Bruce Gordon and Oscar Brambila) (Tele. appr. David Goodrich, rep. Debtor)
(Tele. appr. Michael Leboff, rep. Maria Lozzano)
(Tele,. appr. Yaniv Newman, rep. Furman L. Beckman, G. Ptasinski) (Tele. appr. Jolene, Tanner, rep. United States of America)
(Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jason Komorsky, rep. interested party, Visiting Nurse Association of the Inland Counties)
Docket 816
- NONE LISTED -
Debtor(s):
Visiting Nurse Association of the Represented By
2:00 PM
Movant(s):
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
Proc. Code § 877.6] From: 12/1/20
Also #14 & #15 EH
(Tele. appr. Joshua Franklin, rep. Bruce Gordon and Oscar Brambila) (Tele. appr. David Goodrich, rep. Debtor)
(Tele. appr. Michael Leboff, rep. Maria Lozzano)
(Tele,. appr. Yaniv Newman, rep. Furman L. Beckman, G. Ptasinski) (Tele. appr. Jolene, Tanner, rep. United States of America)
(Tele. appr. David Wood, rep. Creditor Committee)
(Tele. appr. Jason Komorsky, rep. interested party, Visiting Nurse Association of the Inland Counties)
Docket 822
- NONE LISTED -
2:00 PM
Debtor(s):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
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 Steven T Gubner Steven T Gubner Jason B Komorsky Jason B Komorsky
2:00 PM
From: 2/4/20, 5/5/20, 8/18/20 EH
Docket 3
- NONE LISTED -
Debtor(s):
Sunyeah Group Corporation Represented By David B Golubchik Jeffrey S Kwong
2:00 PM
(Re Bad Faith and Sanctions) Case Dismissed re 12(b)(6)
From: 8/18/20, 8/25/20, 10/20/20 Also #20 & #21
EH
(Tele. appr. Raymond Aver, rep. creditor, Jayshree Shah, Mary J. Hilyard, Sandhya Gandhi and Niki Alexander Shetty)
(Tele. appr. Sevan Gorginian, rep. Debtor, Ryan Estates, LLC) (Tele. appr. Robert Jenkins, creditor (LISTEN ONLY)
(Tele. appr. Satish (Niki-Alexander) Shetty, real party in Interest)
Docket 12
- NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
Movant(s):
Ryan Estates, LLC Represented By
2:00 PM
Sevan Gorginian
2:00 PM
From: 8/18/20, 8/25/20 Also #14
EH
(Tele. appr. Raymond Aver, rep. creditor, Jayshree Shah, Mary J. Hilyard, Sandhya Gandhi and Niki Alexander Shetty)
(Tele. appr. Sevan Gorginian, rep. Debtor, Ryan Estates, LLC) (Tele. appr. Robert Jenkins, creditor (LISTEN ONLY)
(Tele. appr. Satish (Niki-Alexander) Shetty, real party in Interest)
Docket 1
- NONE LISTED -
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
Also #18 & #21 EH
(Tele. appr. Raymond Aver, rep. creditor, Jayshree Shah, Mary J. Hilyard, Sandhya Gandhi and Niki Alexander Shetty)
(Tele. appr. Sevan Gorginian, rep. Debtor, Ryan Estates, LLC) (Tele. appr. Robert Jenkins, creditor (LISTEN ONLY)
(Tele. appr. Satish (Niki-Alexander) Shetty, real party in Interest)
Docket 51
On June 16, 2020, Jayshree Shah, Mary Hilyard, Sandhya Gandhi, and Niki Alexander Shetty (collectively, "Petitioning Creditors"; individually, "Shah," "Hilyard,"
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"Gandhi," and "Shetty") filed an involuntary Chapter 7 petition against Ryan Estates, LLC ("Debtor"). On July 10, 2020, Charulatta Patel ("Patel"). On July 17, 2020, Debtor filed a motion to dismiss. On August 4, 2020, Petitioning Creditors filed their opposition to the motion to dismiss. On August 14, 2020, Gary Warnick ("Warnick") and Sunkara Survivors Trust ("Sunkara") (collectively with Patel and Warnick, the "Joined Creditors"). On August 25, 2020, the Court held a hearing on the motion; the Court dismissed the case pursuant to order entered September 18, 2020, with the parties to further brief the issue of damages under 11 U.S.C. § 303.
On October 31, 2020, Debtor filed its motion for damages. Debtor requested
$22,905.75 in attorney’s fees, $500,000 in actual damages, and punitive damages against Petitioning Creditors and counsel. Debtor specifically requested that damages be apportioned 60% against Petitioning Creditor’s Counsel/Shetty and 40% against the remaining Petitioning Creditors. On November 23, 2020, the Court extended the deadline for the remaining pleadings to be filed.
On November 25, 2020, Shetty, on his own behalf, filed an opposition, as well as a motion for leave to file an oversized brief, and a supporting declaration and request for judicial notice. Shetty’s opposition also purported to serve as a motion to reconsider the order dismissing the bankruptcy case, but Shetty did not clearly attempt to set it for hearing. Additionally, the Court notes that the motion, insofar as the Court were to construe the opposition as a motion, was untimely under Local Rule
9013-1(d). Furthermore, the Court notes that Shetty’s opposition, with supporting documentation, was 2099 pages in length, and, for the reasons stated in the discussions section, infra, the Court is inclined to strike the pleadings filed by Shetty.
That same day, Petitioning Creditors filed their opposition, motions to strike the (unsigned) declarations of Aasim Akhtar ("Akhtar") and Srinivas Karthik ("Karthik"), and evidentiary objections to the declaration of Rao Daluvoy ("Daluvoy").
On December 1 and 2, Debtor filed replies to the oppositions of Shetty and Petitioning Creditors, and an opposition to the evidentiary declaration filed by Petitioning Creditors. On December 7, 2020, Shetty filed a second pleading. It is not clear what this pleading should be characterized, although the Court notes that the first sentence
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of the pleading reads "Niki-Alexander Shetty, as Managing member of Ryan Estates, LLC and party in interest was not previously represented by counsel in any proceedings," a clearly inaccurate statement that serves as a transition to the Court’s analysis.
As a preliminary matter, the Court is inclined to strike the pleadings filed by Shetty, specifically docket numbers 55, 57-59, and 74. Specifically, as Shetty is aware, docket number 59 is oversized and not in compliance with the Court Manual guidelines for filed documents. While Shetty did file a motion for leave to file an oversized brief pursuant to Local Rule 9013-2(b), he did not follow the proper procedures for obtaining that leave prior to filing the voluminous docket number 59. Additionally, docket number 74 is an unauthorized pleading not authorized by the Court.
More fundamentally, however, a party cannot have multiple sources of representation filing overlapping pleadings. See, e.g., Epley v. Califro, 59 Cal. 2d 849, 854 ("The attorney of record has the exclusive right to appear in court for his client and neither the party himself nor another attorney should be recognized by the court in the conduct or disposition of the case."). Therefore, Shetty still being represented by Raymond Aver, the Court will strike the pleadings filed by Shetty on his own behalf.
Regarding Petitioning Creditor’s requests to strike the declarations of Akhtar and Karthik, the Court denies those requests as moot because Debtor already withdrew those declarations, and the corresponding damages requests, in the reply filed December 2, 2020. Regarding Petitioning Creditor’s evidentiary objections to the declaration of Daluvoy, the Court is inclined to make the following rulings:
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Paragraph 4 | SUSTAIN as to first sentence on the grounds of lack of foundation and personal knowledge, OVERRULE as to the second and third sentences |
Paragraph 5 | SUSTAIN as the first and third sentences on the grounds of lack of foundation and personal knowledge, OVERRULE as to the second sentence |
Paragraph 6 | SUSTAIN on the grounds of lack of foundation and personal knowledge |
Paragraph 7 | SUSTAIN on the grounds of lack of foundation and personal knowledge. The Court also notes that the first sentence is either simply a legal conclusion or is incoherent. |
Paragraph 8 | SUSTAIN as to the first through third, seventh, ninth, and eleventh through fourteenth sentences on the grounds of lack of foundation and personal knowledge, or because the sentences offer legal conclusions not appropriate for a declaration, OVERRULE as to the remaining sentences. |
Paragraph 9 | SUSTAIN on the grounds of lack of foundation and personal knowledge. |
Paragraph 15 | OVERRULE |
Paragraph 16 | SUSTAIN on the grounds of lack of foundation and personal knowledge. The Court notes that the second sentences does not actually contain any substantive allegation. |
Paragraph 17 | OVERRULE |
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Paragraph 18 | OVERRULE |
Paragraph 20 | OVERRULE |
Paragraph 21 | SUSTAIN on the grounds of lack of foundation and personal knowledge. |
Paragraph 22 | SUSTAIN on the grounds that the paragraph lacks relevance. |
Paragraph 23 | SUSTAIN on the grounds that the paragraph lacks relevance, |
Paragraph 24 | SUSTAIN on the grounds that the paragraph lacks relevance. |
Paragraph 25 | SUSTAIN on the grounds that the paragraph lacks relevance. |
Legal Standard
11 U.S.C. § 303(i) states:
If the court dismissed a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment –
against the petitioners and in favor of the debtor for –
costs; or
a reasonable attorney’s fee; or
against any petitioner that filed the petition in bad faith, for –
any damages proximately caused by such filing; or
punitive damages
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The Ninth Circuit has determined that a totality of the circumstances test applies when confronted with a motion for damages pursuant to § 303(i):
Although the totality of the circumstances test can be somewhat amorphous, the bankruptcy court, where relevant, should consider the following factors before awarding attorney’s fees and costs under § 303(i): (1) the merits of the involuntary petition, (2) the role of any improper conduct on the part of the alleged debtor, (3) the reasonableness of the actions taken by the petitioning creditors, and (4) the motivation and objectives behind filing the petition.
Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 707 (9th Cir. 2004) (quotations omitted) (stating also that "[a]lthough definitive in most cases, this list is not exhaustive, and a bankruptcy court may, in its discretion, choose to consider other material factors it deems relevant."). It is "the petitioning creditors’ burden to establish, under the totality of the circumstances, that factors exist which overcome the presumption that Debtor should receive fees and costs." In re C & C Jewelry Mfg., Inc., 373 Fed. Appx. 775 (9th Cir. 2010); see also In re S. Cal. Sunbelt Developers, Inc., 608 F.3d 456, 462 (9th Cir. 2010) ("§303(i)(1) creates a presumption in favor of an award of attorney’s fees"); Sofris v. Maple-Whitworth, Inc., 556 F.3d 642 (9th Cir. 2009) (upon dismissal of involuntary petition, presumption arises in favor of debtor for fees and costs; burden is on petitioning creditor(s) to rebut based on totality of the circumstances).
Here, Petitioning Creditors do not really present an argument that the first factor weighs in their favor. As is acknowledged, "California law require[s] a writing in order to be able to enforce a promise by a third party to answer for the debts of another," [Dkt. No. 60, pg. 11] and, as such, the involuntary petition clearly lacked merit. Regarding the remaining factors, however, Petitioning Creditors argue that they did not realize their debts were not enforceable against Debtor, and that "Daluvoy was intimately involved in defrauding numerous innocent people." [Dkt. No. 60, pg. 10].
Regarding the remaining factors, however, the Court finds that the totality of the circumstances weigh in favor of an award of damages against Shetty, but not against Shah, Patel, Gandhi, Hilyard, Warnick, or Sunkara. Specifically, the Court notes that the declarations filed in support of the opposition make clear that Shetty organized and directed the filing of the instant involuntary petition. Shetty, who holds himself out as someone who has "a post graduate degree in law" who has "represented [himself] in various legal matters before the trial and appellate courts in the State of California," could have, in his role as managing member of Debtor, if properly executed, caused Debtor to assume the liabilities of Daluvoy. Given this background,
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the Court finds that it is reasonable for the other Petitioning Creditors to have relied on Shetty’s statements to the effect that they held a cognizable claim against Debtor. Furthermore, the Court notes that there is nothing in the record that suggests an improper motivation or objective as it relates to any of the Petitioning Creditors other than Shetty. Regarding Shetty, the Court concludes that the presumption of an award of damages and costs has not been rebutted. Specifically, while the record before the Court is muddled and replete with accusations against the other side, it appears here that: (a) there was no credible basis for Shetty’s filing of the instant involuntary petition; or (b) the involuntary petition lacked merit based on Shetty’s error, which the Court will not deem reasonable since it appears Shetty assumed responsibility for managing that aspect of Debtor. In either case, Shetty has failed to rebut the presumption.
The Court addresses improper conduct on the part of Debtor in the section on punitive damages, infra.
Regarding the request for damages to be assessed against Petitioning Creditor’s counsel, Raymond Aver ("Counsel"), the Court notes that the caselaw is not uniform in allowing § 303(i) damages to be assessed against counsel. Compare In re Exchange Network Corp., 92 B.R. 479, 480 (D. Colo. 1988) ("Although the language of § 303(i)
(1) does not explicitly permit a Court to award attorneys fees against counsel for petitioners, it implicitly permits such action. It is well settled in the Tenth Circuit that when a trial [c]ourt is considering the imposition of sanctions in the more general discovery or trial context, the Court must make an effort to determine where the fault lies, and then impose sanctions accordingly.") with Matter of Ramsden, 17 B.R. 59, 61 (Bankr. N.D. Ga. 1981) ("The Court finds no authority to assess the costs and damages against the attorney whose acts of omission and commission caused these frivolous actions to be filed and heard.").
Counsel essentially concedes that he was not aware of the California Civil Code section that requires that an agreement to answer for the debtor of another must be in writing. Nevertheless, given the role of Shetty in this case and in the management of Debtor, and his representations that he is experienced in the areas of law and business, the Court does not conclude that primary fault lies with Counsel. Instead, based upon the record in this case, the Court assesses fault as follows:
75% damages attributable to Shetty 25% damages attributable to Counsel
In reaching this allocation of culpability, the Court attributes responsibility to Counsel for filing the involuntary without sufficient investigation as to the legal obligations of Debtor. The Court assigns greater liability, however, to Shetty, in a multiple of three,
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for his more significant role in directing the involuntary filing, and given his greater knowledge of the Debtor’s obligations as a manager of Debtor, having failed to prepare adequate documentation to effectuate Debtor’s obligations.
Amount of Damages
Debtor’s reply brief has revised the request for actual damages to: (1) $22,905.75 (plus $7,000 since accrued) for legal fees; (2) $3,268 for transfer tax fees; and (3)
$50,000 for lost wages for Daluvoy.
The parties disagree about whether Dr. Daluvoy has standing to request an award of actual costs under 11 U.S.C. § 303(i). While the Court acknowledges that § 303(i)(2) does not contain the limiting language "in favor of the debtor" that is contained in
§ 303(i)(1), the Ninth Circuit has foreclosed the possibility of non-debtor parties recovering damages under § 303(i). Specifically, the Ninth Circuit recently stated the following:
In In re Miles, we considered whether third parties may seek damages under § 303(i). See Miles v. Okun (In re Miles), 430 F.3d 1083, 1093-94 (9th Cir. 2005). Specifically, we examined two interpretations of standing to seek § 303(i) damages: Either the presence of the phrase "in favor of the debtor" in § 303(i)(1) (regarding costs and attorney’s fees) limits standing to collect all § 303(i) damages to the debtor, or the omission of that phrase from § 303(i)(2) (regarding other damages for bad faith filings) allows persons other than the debtor to collect damages for bad faith filings, but not costs and attorney’s fees. See id. at 1093. In evaluating those competing interpretations, we considered legislative history, relevant caselaw, and public policy to determine the proper reading of the statute. See id. With those factors in mind, we concluded that § 303(i) limits standing to recover statutory damages resulting from an involuntary bankruptcy proceeding to the debtor. Those same factors compel a similar result here.
Matter of 8Speed8, Inc., 921 F.3d 1193, 1195 (9th Cir. 2019) (citation omitted). This Ninth Circuit ruling came over a dissent that noted that "parties with a close relationship to a debtor . . . have been allowed to collect damages and fees." Id. at 1198. Specifically, the dissent pointed out that entities with an ownership interest in the debtor have, in some circumstances and jurisdictions, obtained damages under
§ 303(i). See id. Nevertheless, as the dissent acknowledges, the majority’s prohibition
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on damages being sought by a non-debtor "is absolute, regardless of how closely related the third party is to the debtor." Id. at 1196. Therefore, Dr. Daluvoy’s request for damages is not cognizable under § 303(i).
Regarding Debtor’s request for $29,905.75 in attorney fees, Petitioning Creditors argue that: (a) one of the invoices is not authenticated; and (b) there is no evidence that Debtor paid the attorney fees requested. The Court does not agree with the former argument because there is no requirement under § 303 for billing records that establish a § 330 reasonableness requirement to be submitted to the Court.
Nevertheless, the Court is inclined to decline to award costs relating to the representation by Jonathan T. Tasker because Mr. Tasker was not counsel of record to Debtor, there is no evidence establishing what services Mr. Tasker performed, and Mr. Tasker’s own billing invoice identifies Daluvoy, rather than Debtor, as the client. Regarding the amounts requested by Sevan Gorginian, however, the Court disagrees with Petitioning Creditor that Debtor needs to provide evidence that the fees were paid. Whether the amount has been paid, or is owing and to be paid, the attorney’s fees incurred would constitute damages incurred by Debtor. The Court, having reviewed the fees requested and finding no clear objection as reasonableness raised by Petitioning Creditor, is inclined to award $27,408 in fees, with 75% awarded against Shetty and 25% awarded against Counsel. See, e.g., In re Wavelenth, Inc., 61 B.R.
614, 621 (B.A.P. 9th Cir. 1986) ("Unlike fee awards under 11 U.S.C. § 330, the statute, rules, and case law interpreting § 303 have not delineated clear standards for finding whether a particular fee is justified. At a minimum, however, compensation should be reasonable. Any award should also be based on detailed accounts of services rendered. Although the type of fee application used for § 330 awards is not requisite, the records submitted in a § 303(i) setting should clearly identify the nature of work performed, its relevance to the defense to the involuntary petition, and the time expended.").
Regarding the $3,268 relating to a transfer tax fees, the Court notes that the explanation why this cost was caused by the filing of this petition simply lacks merit. Paragraph 17 of Daluvoy’s declaration indicates that transfer occurred because of the ongoing dispute between Shetty and Daluvoy, and the attached exhibit indicates that the transfer took place long before the instant involuntary petition was filed. As such, the Court will not award this cost.
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Punitive Damages
Debtor finally requests punitive damages. A prerequisite to an award of punitive damages under § 303(i) is a bad faith finding by the Court. "The Bankruptcy Code does not define ‘bad faith’ for purposes of awarding punitive damages under
§ 303(i)." In re Wavelength, Inc., 61 B.R. 614, 619 (B.A.P. 9th Cir. 1986). Bad faith is recognized when a petition is "ill-advised or motivated by spite, malice or a desire to embarrass the debtor." Id. "Bad faith should be measured by an objective test that asks what a reasonable person would have believed." Id. At 620. "Punitive damages are appropriately awarded in response to particularly egregious conduct or a purely frivolous filing." In re Mundo Custom Homes, 179 B.R. 566, 571 (Bankr. N.D. Ill.
1995).
Here, given the evidence submitted to the Court during the course of the proceedings, including the declarations submitted in support of the pleadings related to this motion, Dr. Daluvoy’s uncontested liability for significant amounts of investment funds entrusted to him, Shetty’s role in managing Debtor and his general litigiousness,1 and the murky and highly contested evidentiary record regarding the acts of Daluovy and Shetty, the Court concludes that Shetty organized the filing of the instant involuntary petition as part of an escalating legal and business dispute with Daluvoy. While the tone of the pleadings filed by Shetty implies that he likely was "motivated by spite, malice or a desire to embarrass the debtor," the Court is also of the firm impression that Daluvoy, individually or in connection with Debtor, may also have engaged in some improper conduct2, and that the instant filing may not have been "purely frivolous." Therefore, and noting that Shetty’s failure to execute proper paperwork is the proximate cause of the failure of the instant filing, while it is somewhat of a close call, the Court is inclined to decline an award of punitive damages at this time.
The Court is inclined to GRANT the motion the motion to the extent of awarding Debtor $27,408 in actual damages, with 75% assessed against Shetty and 25% assessed against Counsel.
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APPEARANCES REQUIRED.
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
2:00 PM
Also 18 & 20 EH
(Tele. appr. Raymond Aver, rep. creditor, Jayshree Shah, Mary J. Hilyard, Sandhya Gandhi and Niki Alexander Shetty)
(Tele. appr. Sevan Gorginian, rep. Debtor, Ryan Estates, LLC) (Tele. appr. Robert Jenkins, creditor (LISTEN ONLY)
(Tele. appr. Raymond Aver, rep. creditor, Jayshree Shah, Mary J. Hilyard, Sandhya Gandhi and Niki Alexander Shetty)
(Tele. appr. Sevan Gorginian, rep. Debtor, Ryan Estates, LLC) (Tele. appr. Robert Jenkins, creditor (LISTEN ONLY)
(Tele. appr. Satish (Niki-Alexander) Shetty, real party in Interest)
Docket 55
- NONE LISTED -
2:00 PM
Debtor(s):
Ryan Estates, LLC Represented By Sevan Gorginian
11:00 AM
EH
Docket 22
On October 12, 2010, Elizabeth Chacon ("Debtor") filed a voluntary petition for chapter 7 relief. Debtor received a discharge on January 26, 2011, and the case was subsequently closed on February 17, 2011.
The case was reopened on May 21, 2020 to enable Trustee to administer a refund Debtor was entitled to from a collateral protection insurance policy on her vehicle.
On June 5, 2020, a Notice of Possible Dividend and Order Fixing Time to File Claims was served on all creditors. The claim bar date was September 7, 2020. On November 4, 2020, Midland Funding, LLC ("Claimant") filed a claim in the amount of $3,767.58 ("Claim 2").
Trustee filed the instant motion on November 9, 2020 objecting to Claim 2 and seeking to allow payment on it to the extent of any surplus pursuant to 11 U.S.C. § 726(a)(3).
11 U.S.C. § 502(b)(9) provides:
(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
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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 –
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.
11 U.S.C. § 502(b)(9) (emphasis added). 11 U.S.C. § 726(a)(3) states:
Except as provided in section 510 of this title, property of the estate shall be distributed—
(3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection;
11 U.S.C. § 726(a)(3).
Here, Claim 2 was filed late, and thus is only allowed to the extent there is a surplus left at the time it is entitled to distribution.
For the foregoing reasons, there being no opposition filed, service appearing proper, the Court is inclined to GRANT the motion, SUSTAINTING Trustee’s objection to Claim 2 and ALLOWING Claim 2, as late filed, pursuant to 11 U.S.C. § 726(a)(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.
11:00 AM
Debtor(s):
Elizabeth Chacon Represented By Omar Zambrano
Movant(s):
John P Pringle (TR) Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
EH
(Tele. appr. James Alderson, rep. Debtor)
Docket 141
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
11:00 AM
From: 4/1/20, 5/13/20, 9/9/20, 10/14/20 EH
(Tele. appr. Ivan Kallick, rep. movant Manatt)
Docket 464
- NONE LISTED -
Debtor(s):
Abel Solorzano Represented By Byron Z Moldo Howard Camhi
Joint Debtor(s):
Irma Solorzano Represented By Byron Z Moldo Howard Camhi
Trustee(s):
Howard B Grobstein (TR) Represented By Ivan L Kallick
11:00 AM
(Tele. appr. David Wood, rep. Trustee, Larry Simons)
Docket 513
Service: Proper Opposition: None
The applications for compensation of the Trustee and the 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: $152.15 Trustee Expenses: $39.02
Attorney Fees: $19,813.84 Attorney Expenses: $944.54
Trustee Insurance Agency: $200 Court Costs: $1,050
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):
Nabeel Slaieh Represented By
George A Saba - INACTIVE -
Trustee(s):
Larry D Simons (TR) Represented By
D Edward Hays David Wood Matthew Grimshaw
11:00 AM
Also #5.1 From: 11/4/20
(Tele. appr. Peter Bronson, rep. Claimant, Osnap Inc.) (Tele. appr. Caroline Djang, rep. trustee, Robert Whitmore)
(Tele. appr. Ivo Keller, rep. creditor, RREEF American REIT II Corp.)
(Tele. appr. Robert Whitmore, chapter 7 trustee) v
Docket 226
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 Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 13,017.07 Trustee Expenses: $ 0.00
Attorney Fees: $ 45,000.00
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Attorney Costs: $ 5,952.34
Accountant Fees: $3,696.00 Accountant Costs: $332.40
Franchise Tax Board: $2,608.28, pursuant to Claim 60 Court Costs: $1,050
Regarding the remaining distribution of funds, the Court notes two issues with the proposed distribution. First, noting that 11 U.S.C. § 726(b) subordinates the payment of administrative expenses incurred in a previous chapter to administrative expenses incurred during the pendency of the Chapter 7 case, it is unclear why the United States Trustee fees are being paid as a Chapter 7 administrative expense rather than a Chapter 11 administrative expense. Second, the Court notes that for many of the claims that are being paid as a Chapter 11 administrative expense, the proof of claim filed by the claimant states that the claim is not entitled to priority. It is unclear why Trustee would unilaterally change that designation to pay the claim as a priority claim rather than pay the claims in accordance with the treatment identified on the proof of claim (and pursuant to the applicable statutory scheme).
APPEARANCES REQUIRED.
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
11:00 AM
Also #5 EH
Docket 231
Service proper on shortened notice No opposition filed
For the reasons set forth in the motion, no opposition having been filed, the Court is inclined to GRANT the motion and ALLOW claim numbers 19, 33, 38, and 40 as administrative claims pursuant to 11 U.S.C. § 503(b)(1)(a).
APPEARANCES REQUIRED.
Debtor(s):
Bausman and Company Incorporated Represented By
William A Smelko
Trustee(s):
Robert Whitmore (TR) Represented By
Best Best & Krieger Caroline Djang
11:00 AM
Docket 280
- NONE LISTED -
Debtor(s):
Richard Garavito Represented By Todd L Turoci
Movant(s):
Steven M Speier (TR) Represented By Rika Kido
Trustee(s):
Steven M Speier (TR) Represented By Rika Kido
11:00 AM
(Tele. appr. Lynda Bui, chapter 7 trustee)
Docket 62
Service: Proper Opposition: None
The applications for compensation of the Trustee and the 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: $57,940.36 Trustee Expenses: $955.05
Accountant Fees: $3,442.50 Accountant Expenses: $279.69
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):
Beverly Murphy Represented By Paul Y Lee
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Represented By Jeffrey S Sheldon
11:00 AM
EH
(Tele. appr. Vanmai Nguyen, rep. Debtor)
(Tele. appr. Frank Ruggier, rep. trustee, Larry Simons)
Docket 20
- NONE LISTED -
Debtor(s):
Lana Lu Represented By
Vanmai H Nguyen
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier Larry D Simons
2:00 PM
(Tele. appr. Charles W. Daff, chapter 7 trustee) (Tele. appr. Robert Goe, rep. trustee, Charles Daff)
Docket 87
Service proper
No opposition filed
In the instant motion, filed October 12, 2020, Trustee seeks to close Case 6:17-19647, In re Sean Karadas, filed on November 20, 2017 with an unadministered asset in the amount of $327,653.00, plus attorney fees of $3,896.05. The asset was ordered be turned over on October 24, 2018. Debtor has not complied with the order and there have been multiple orders to show cause, as well as contempt and body detention orders. As such, Trustee requests the Court except the asset from abandonment and that the turnover order remain fully enforceable should Trustee re-open the case.
11 U.S.C. § 704(1) requires that a trustee "close an estate as expeditiously as is compatible with the best interest of the parties in interest." The Handbook for Chapter 7 Trustees provides:
In order to ensure that a trustee complies with the duty to close cases expeditiously under § 704(1), the United States Trustee monitors the number and age of open cases and the reasons they remain open. For United States
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Trustee reporting purposes, an "old" case is one that has been open more than three years.
Vol. 2: Chapter 7 Case Administration, Pg. 33 available at Volume 2: Chapter 7 Case Administration (justice.gov).
11 U.S.C. § 554 allows the Court to prevent unadministered property from being abandoned to a debtor:
Unless the court orders otherwise, any property scheduled under section 521(a)
of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
11 U.S.C. § 554(c).
The case having been opened for three years is an "old" case ripe for closure. Further, the Debtor having skirted the Court’s orders is cause to order the asset remain unadministered until turned over.
For the reasons set forth above, the Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:20-01171 Daff (TR) v. Karadas
EH
(Tele. appr. Charles W. Daff, chapter 7 trustee) (Tele. appr. Robert Goe, rep. trustee, Charles Daff)
Docket 1
- NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Plaintiff(s):
Charles W Daff (TR) Pro Se
Trustee(s):
Charles W Daff (TR) Represented By Robert P Goe
Thomas J Eastmond
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
EH
(Tele. appr. Larry Simons, rep. Plaintiff, Howard Grobstein)
Docket 27
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
2:00 PM
Adv#: 6:20-01022 Grobstein v. Aitken
From: 5/6/20, 6/10/20, 7/1/20, 8/19/20, 9/30/20,12/2/20 Also #11
EH
Docket 1
- NONE LISTED -
Debtor(s):
Timothy Mark Aitken Pro Se
Defendant(s):
Alicia Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Plaintiff(s):
Howard Grobstein Represented By Larry D Simons
Trustee(s):
Howard B Grobstein (TR) Represented By
2:00 PM
Larry D Simons
11:00 AM
Adv#: 6:19-01051 Martinez v. Garza et al
From: 5/23/19, 8/22/19, 10/17/19, 12/19/19, 2/20/20, 3/19/20, 4/16/20, 4/30/20
EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Christopher J Langley
Defendant(s):
Cesar Garza Pro Se
Noe Pelayo Pro Se
George Arthur Macias Pro Se
Flor Valladares Pro Se
Henry Gonzalez Pro Se
West Coast Plus Realty, Inc. Pro Se
11:00 AM
Grand Capital Group Pro Se
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
(Tele. appr. Benjamin Heston, rep. Debtor, Tawnie Vanderham)
Docket 119
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Movant(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #2 EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
(Tele. appr. Benjamin Heston, rep. Debtor, Tawnie Vanderham)
Docket 123
- NONE LISTED -
Debtor(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Movant(s):
Tawnie L Vanderham Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From 10/15/20, 11/5/20 EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
(Tele. appr. James Hornbuckle, rep. Debtor Zachery Ogletree)
Docket 32
- NONE LISTED -
Debtor(s):
Zackery B. Ogletree Represented By
James D. Hornbuckle
Joint Debtor(s):
Danielle Police Represented By
James D. Hornbuckle
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 35
On October 4, 2019, Phat Khamkathok ("Debtor") filed a Chapter 13 voluntary petition. On October 15, 2019, Merrick Bank ("Creditor") filed a proof of claim for an unsecured claim in the amount of $957.72 ("Claim 3"). On January 15, 2020, Debtor’s Chapter 13 plan was confirmed.
On November 6, 2020, Debtor filed an objection to Claim 3. Debtor argues that Claim 3 is barred by the statute of limitations because the last payment date was on April 7, 2011. Debtor also requests that any funds paid to Creditor be returned to Trustee, although it does not appear that Trustee has begun making payments on general unsecured claims. On November 19, 2020, Creditor withdrew Claim 3.
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.
The Court notes that Creditor withdrew Claim 3 on November 19, 2020. While FED. R. BANKR. P. Rule 3006 prohibits a creditor from withdrawing a filed proof of claim after the filing of a claim objection, the Court will construe the withdrawal of Claim 3, and
11:00 AM
the failure to oppose the claim objection, as consent to the relief requested pursuant to Local Rule 9013-1(h).
Additionally, 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 states that it is based upon a credit card. Therefore, it appears that Claim 3 fits within the category established by CAL. CODE CIV. P. § 337, and that the statute of limitations is four years. The proof of claim identifies a last payment date of April 7, 2011. That is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 3 is unenforceable.
11:00 AM
The Court is inclined to SUSTAIN the objection to the extent of DISALLOWING Claim 3 in its entirety.
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):
Phat M Khamkathok Represented By Paul Y Lee
Movant(s):
Phat M Khamkathok Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee) (Tele. appr. Nancy Clark, rep. Debtor, Gabrielle Mendoza)
Docket 19
- NONE LISTED -
Debtor(s):
Gabrielle Mendoza Represented By Michael E Clark
Movant(s):
Gabrielle Mendoza Represented By Michael E Clark Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 2
- NONE LISTED -
Debtor(s):
Cesar Poblete Perea Represented By
Hasmik Jasmine Papian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee) (Tele. appr. Natalie Alvarado, rep. Debtor, Carl Collins)
Docket 2
- NONE LISTED -
Debtor(s):
Carl A Collins Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 17
- NONE LISTED -
Debtor(s):
Charles Sanchez Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 6
- NONE LISTED -
Debtor(s):
Brenadette Schoby Represented By Suzette Douglas
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 2
- NONE LISTED -
Debtor(s):
Alexandria Dacanay Calunsod Represented By
Hasmik Jasmine Papian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Latacia D Sanders Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
(Tele. appr. Edgar Lombera, rep. Debtor, Sue Ellen Guevara)
Docket 2
- NONE LISTED -
Debtor(s):
Sue Ellen Calapardo Guevara Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
(Tele. appr. Edgar Lombera, rep. Debtor, Efren Valenzuela)
Docket 2
- NONE LISTED -
Debtor(s):
Efren Valenzuela Represented By Edgar P Lombera
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Ronald Eugene Day Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
DEREK B WINKENWEDER Represented By Jamil L White
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jane Bowers Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Fausto Maldonado Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Stephanie Marie Encinas Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Maria Herminia De Casas Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Andrew Nixon Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 99
- NONE LISTED -
Debtor(s):
Jude Okwor Represented By
Javier H Castillo
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
- NONE LISTED -
Debtor(s):
Lawrence Edmond III Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 87
- NONE LISTED -
Debtor(s):
Xavier C. Luna Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 46
- NONE LISTED -
Debtor(s):
Leonard Lott Represented By
Daniel King
Joint Debtor(s):
Darlene Lott Represented By
Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Armando Richard Moreno Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 67
- NONE LISTED -
Debtor(s):
Cynthia Molina Gomez Represented By Joshua L Sternberg
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 91
- NONE LISTED -
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Dari Kelley Represented By
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 58
- NONE LISTED -
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor, Christopher Monroe)
Docket 51
- NONE LISTED -
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 29
- NONE LISTED -
Debtor(s):
Jose Luis Feliciano Represented By Carey C Pickford
Joint Debtor(s):
Linda Joann Feliciano Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Rod Danielson, rep. Chapter 13 Trustee)
Docket 51
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis Jennifer F Tanios
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 40
- NONE LISTED -
Debtor(s):
Charles Boehmer Represented By Paul Y Lee
Joint Debtor(s):
Tamy Boehmer Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 27
- NONE LISTED -
Debtor(s):
Tanya S. Hernandez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
Dawn Michele McClure Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAB WEST, LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Cab West, LLC)
Docket 55
For the reasons set forth in the motion, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request for adequate protection 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):
Thomas More Butler Represented By
Stuart G Steingraber
11:00 AM
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Movant(s):
Cab West, LLC Represented By Jennifer H Wang Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CIG FINANCIAL, LLC
EH
Docket 41
- NONE LISTED -
Debtor(s):
Paul Trevino Represented By
Christopher J Langley Michael Smith
Movant(s):
CIG Financial, LLC Represented By Stephanie A Newport
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Austin Nagel, rep. moving party, Nissan Motor Acceptance Corporation)
Docket 9
For the reasons set forth in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Esther Alejandra Grajeda Represented By
Ethan Kiwhan Chin
Movant(s):
Nissan Motor Acceptance Represented By
11:00 AM
Trustee(s):
Kirsten Martinez
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: GREGORY JOHNSON
EH
(Tele. appr. Andy Nguyen, rep. Debtor, Gregory Johnson)
Docket 9
11 U.S.C. § 362(c)(3)(A) provides that the automatic stay will terminate within thirty days if Debtor had a previous bankruptcy case dismissed within the preceding one- year period. If this is the case, pursuant to § 362(c)(3)(B), Debtor may file a motion to continue the automatic stay. Here, Debtor’s previous case was not dismissed, but discharged on February 3, 2020. Therefore, § 362(c)(3) does not apply and there is no need to file a motion to continue the stay. Accordingly, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Gregory Johnson Represented By Andy Nguyen
Movant(s):
Gregory Johnson Represented By Andy Nguyen
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 12/16/20 EH
(Tele. appr. James Alderson, rep. Debtor, Maximino and Rebecca Torres) (Tele. appr. Abram Feuerstein, rep. United States Trustee)
Docket 141
- NONE LISTED -
Debtor(s):
Maximino Romero Torres Represented By James A Alderson
Joint Debtor(s):
Rebecca Anne Torres Represented By James A Alderson
Trustee(s):
Patricia J Zimmermann (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. appr. Cara Hagan, rep. Defendant , Continental Capital, LLC)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Complainant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff, Morschauser)
Docket 365
- 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
Lawrence J Kuhlman Reid A Winthrop
1:00 PM
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
conversion; 2 constructive trust; 3 unjust enrichment; 4 an accounting; 5 declaratory relief; and 6 primary and secondary indemnification and contribution by American Business Investments , Jesse Bojorquez against Stephen Collias , Continental Capital LLC
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20, 11/10/20,12/9/20
EH
(Tele. appr. Cara Hagan, rep. Defendant , Continental Capital, LLC)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Complainant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff, Morschauser)
Docket 29
- NONE LISTED -
Debtor(s):
Devore Stop A General Partners Represented By
Arshak Bartoumian - DISBARRED - Newton W Kellam
Devore Stop Represented By
Hutchison B Meltzer
1:00 PM
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
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, 11/13/19, 12/17/19,
1/15/20, 2/12/20, 3/11/20, 8/19/20, 10/28/20, 11/10/20,12/9/20
EH
(Tele. appr. Cara Hagan, rep. Defendant , Continental Capital, LLC)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Complainant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff, Morschauser)
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
1:00 PM
Defendant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. appr. Cara Hagan, rep. Defendant , Continental Capital, LLC)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Complainant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff, Morschauser)
Docket 379
- 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
Lawrence J Kuhlman Reid A Winthrop
1:00 PM
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
1:00 PM
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. appr. Cara Hagan, rep. Defendant , Continental Capital, LLC)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Complainant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff, Morschauser)
Docket 364
- 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
Lawrence J Kuhlman Reid A Winthrop
1:00 PM
Stephen Collias Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Jesse Bojorquez Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
American Business Investments Represented By Lawrence J Kuhlman
Autumn D Spaeth ESQ Cara J Hagan
Reid A Winthrop
Mohammed Abdizadeh Pro Se
Movant(s):
Continental Capital LLC Represented By Cara J Hagan
Lawrence J Kuhlman Reid A Winthrop
Continental Capital LLC Represented By Cara J Hagan
Continental Capital LLC Represented By Cara J Hagan
Plaintiff(s):
William G Morschauser Represented By Hutchison B Meltzer Reid A Winthrop Cara J Hagan
Trustee(s):
Arturo Cisneros (TR) Pro Se
1:00 PM
2:00 PM
Adv#: 6:20-01106 Daff v. DeGracia
Avoidance of Intentional Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.07, 3439.08];
Avoidance of Constructive Fraudulent Transfers and Recovery of Same [11 U.S.C. §§ 544, 548, 550, 551; CAL. CIV. CODE §§ 3439.04, 3439.05, 3439.07, 3439.08, 3439.09]; 3. Disallowance of Claims [11 U.S.C. §502(d)]; 4. Unjust Enrichment [11 U.S.C. § 105]; 5. Declaratory Relief [11 U.S.C. §§ 541, 544, 548; FRBP 7001(9)]; and 6. Turnover of Property of the Estate [11 U.S.C. § 542] Nature of Suit: (01 (Determination of removed claim or cause)),(13 (Recovery of money/property - 548 fraudulent transfer)),(91 (Declaratory judgment)),(11 (Recovery of money/property - 542 turnover of property)) (Iskander, Brandon)
From: 7/22/20, 8/19/20, 10/28/20 EH
Docket 1
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Defendant(s):
Satoko DeGracia Represented By Scott Talkov
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
2:00 PM
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander