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Docket 9
Debtor(s):
Kimberly Torrence Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
12/30/2020 3:13:09 PM Page 1 of 1
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From: 12/3/20,12/15/20 EH
(Tele. appr. Gordon Dayton, rep. Debtor, Kiia Wilson)
(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
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MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
(Tele. appr. James Beime, rep. Debtors Miguel and Laura Pinedo) (Tele. appr. Kirsten Martinez, rep. creditor, Specialized Loan Servicing)
Docket 36
The Court notes that there is no evidence from Debtor as to efforts to remedy the unpermitted patio structure. Parties to apprise the Court of the status of repairs pursuant to the UHC Notice and Order-Repair, and of any adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James G. Beirne
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Movant(s):
Specialized Loan Servicing LLC Represented By
John Rafferty Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota Motor Credit Corporation)
Docket 50
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 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):
David Ray Bowman Represented By Carey C Pickford
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Joint Debtor(s):
Michelle Jan Bowman Represented By Carey C Pickford
Movant(s):
TOYOTA MOTOR CREDIT Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: FREEDOM MORTGAGE CORPORATION
CASE DISMISSED 1/4/21
EH
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 FRBP 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):
Andrea Melissa Hughes Represented By
11:00 AM
Movant(s):
Michael T Reid
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: NATIONSTAR MORTGAGE LLC
EH
(Tele. appr. Nancy Lee, rep. creditor, Nationstar Mortgage LLC)
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 request under ¶ 2;
-GRANT request under ¶ 3;
-GRANT request for relief from § 1301(a) co-debtor stay;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 12;
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Merle Roger Johnson Represented By Arlene M Tokarz
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Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: ADRIAN B. ALVARADO, ALICE E. ALVARADO & IRMA ALVARADO
EH
(Tele. appr. Jeff Yoss, rep. creditor, Adrian Alvarado, et al)
Docket 35
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 claim arising from the foreign action is subject to equitable
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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) citing to In re Curtis, 40 B.R. 795, 800 (Bankr. D. Utah 1984) (emphasis added). 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 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, although 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, particularly the fifth factor, weigh in favor of granting relief from stay 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):
Adrian Alvado Represented By Jeff Yoss
Trustee(s):
Howard B Grobstein (TR) Represented By
Ori S Blumenfeld
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MOVANT: FEDERAL HOME LOAN MORTGAGE CORPORATION
EH
(Tele. appr. Megan Lees, rep. creditor, Federal Home Loan Mortgage Corporation)
Docket 22
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 Chapter 13 case dismissed on June 10, 2020, less than
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one year before the instant case was filed. As Debtors have not filed a motion to continue the automatic stay, the automatic stay expired on October 15, 2020.
Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
James Henry House III Represented By Dana Travis
Joint Debtor(s):
Adria Ann House Represented By Dana Travis
Movant(s):
Federal Home Loan Mortgage Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
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MOVANT: JPMORGAN CHASE BANK
EH
(Tele. appr. Wendy Locke, rep. creditor, JPMorgan Chase Bank)
Docket 12
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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Here, Debtor has not filed a statement of intention with respect to the Honda Odyssey. As the thirty-day deadline for filing or amending the statement of intention has passed on October 30, 2020 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):
Doroteo Mendoza Represented By
Richard L. Sturdevant
Joint Debtor(s):
Maria Mendoza Represented By
Richard L. Sturdevant
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Joseph C Delmotte
Trustee(s):
Arturo Cisneros (TR) Pro Se
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MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
(Tele. appr. Paul Reza, rep. creditor, SchoolsFirst Federal Credit Union)
Docket 11
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 Chapter 13 case dismissed on September 30, 2020, less than one year before the instant case was filed. As Debtors have not filed a motion to continue the automatic stay, the automatic stay expired on November 2, 2020.
Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY
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the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
John Forest Harmon Jr. Represented By David Lozano
Joint Debtor(s):
Margaret Anne Vieyra-Harmon Represented By David Lozano
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Steven M Speier (TR) Pro Se
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MOVANT: TOYOTA MOTOR CREDIT COMPANY
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota, Motor Credit Corporation)
Docket 18
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 Chapter 13 case dismissed on September 22, 2020, less than one year before the instant case was filed. As Debtors have not filed a motion to continue the automatic stay, the automatic stay expired on November 8, 2020.
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Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Roderick Harlan Friloux Represented By Tina H Trinh
Joint Debtor(s):
Rebecca Andrade-Friloux Represented By Tina H Trinh
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Howard B Grobstein (TR) Pro Se
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MOVANT: KINECTA FEDERAL CREDIT UNION
EH
(Tele. appr. Mark Blackman, rep. creditor, Kinecta Federal Credit Union)
Docket 17
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):
Jessica Mendoza Represented By
Pamela N Buckner-Davis
Movant(s):
Kinecta Federal Credit Union Represented By
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Trustee(s):
Mark S Blackman
Charles W Daff (TR) Pro Se
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MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, GM Financial)
Docket 12
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):
Jose Juan Avila Represented By Dana Travis
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Joint Debtor(s):
Sefora Tabita Avila Represented By Dana Travis
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
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MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit Company LLC)
Docket 10
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):
Elizabeth Ann Huck Represented By Aaron Lloyd
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Joint Debtor(s):
Michael Warren Huck Represented By Aaron Lloyd
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01129 Visiting Nurse Association of the Inland Counties v. Del Gado et al
From: 9/29/20 EH
(Tele. appr. Michael Leboff, rep. Defendant, Maria Lozzano)
Docket 1
Based on the unilateral status report and request for continuance, the Court intends to continue the status conference to February 2, 2021 at 2 PM.
APPEARANCES WAIVED.
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
Requiring Status Report EH
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. Donald Reid, rep. Debtor, Raman Enterprises LLC)
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Sevan Gorginian
10:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Sheila Denise Sengstock Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 20
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
TOYOTA MOTOR CREDIT Represented By John Rafferty
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack
10:00 AM
Re: 2016 Jeep Patriot EH
(Tele. appr. Wendy Hawkins, pro se Debtor)
Docket 9
- NONE LISTED -
Debtor(s):
Wendy Lee Hawkins Represented By Daniel King
Trustee(s):
Robert Whitmore (TR) Pro Se
10:00 AM
Re: 2017 Nissan Rogue EH
Docket 9
- NONE LISTED -
Debtor(s):
Carlos Gabier Renteria Represented By Omar Zambrano
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
EH
(Tele. appr. Cristina Hemphill, pro se Debtor)
Docket 12
- NONE LISTED -
Debtor(s):
Cristina Lanae Hemphill Represented By Steven A Alpert
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
$16,742.56 re: 1977 Lancer Manufactured Home EH
(Tele. appr. Dolores Gracia, pro se Debtor)
(Tele. appr. Mark Blackman, rep. creditor, 21st Mortgage Corporation)
Docket 8
- NONE LISTED -
Debtor(s):
Dolores D Gracia Represented By Daniel King
Movant(s):
21st Mortgage Corporation Represented By Amy Dukes
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 25
On October 12, 2010, Elizabeth Chacon ("Debtor") filed a Chapter 7 voluntary petition. 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 18, 2020, Capital One Bank (USA), N.A. ("Creditor") filed a proof of claim for an unsecured claim in the amount of $2,338.53 ("Claim 3").
On November 18, 2020, Trustee filed a motion to allow Claim 3 as a late-filed claim.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
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evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "The objector must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 726(a)(3) states:
Except as provided in section 510 of this title, property of the estate shall be distributed—
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
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kind specified in paragraph (2)(C) of this subsection;
11 U.S.C. § 726(a)(3).
Here, Claim 3 was filed sixty-three days after the claims bar deadline, and is therefore late. The Court is concerned, however, that the instant motion does not actually raise a justiciable case or controversy. See, e.g., DaimlerChrysler Corp v. Cuno, 547 U.S.
332, 341 (2006) (limiting jurisdiction to actual cases or controversies). Additionally, because this motion seeks a classification under § 726, but the Court approves a trustee’s proposed order of distribution under § 726 in the context of a hearing on the Trustee’s final report, this motion appears to be unnecessary.
Trustee to address the Court’s concerns raised above.
APPEARANCES REQUIRED.
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
(Tele. appr. Melissa Davis Lowe, rep. trustee, Karl Anderson)
Docket 53
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee, Counsel for the Trustee, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 4,102.05 Trustee Expenses: $ 101.72
Attorney Fees: $ 7,685.77 Attorney Costs: $ 741.49
Accountant Fees: $1,866.48 Accountant Costs: $502.98
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
Steven Gene Van Mierlo Represented By
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Benjamin A Yrungaray
Joint Debtor(s):
Julie Van Mierlo Represented By
Benjamin A Yrungaray
Trustee(s):
Karl T Anderson (TR) Represented By Leonard M Shulman Melissa Davis Lowe
11:00 AM
(Tele. appr. Toan Chung, rep. attorney for trustee)
Docket 91
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: $ 6,693.84 Trustee Expenses: $ 991.46
Attorney Fees: $ 37,540 Attorney Costs: $ 395.39
Accountant Fees: $2,772 Accountant Costs: $378.90
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):
Charlie W Parker Represented By
11:00 AM
Trustee(s):
David J Workman
Todd A. Frealy (TR) Represented By Toan B Chung
Roquemore Pringle & Moore Inc
11:00 AM
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 52
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: $ 8,250.00 Trustee Expenses: $ 252.72
Attorney Fees: $ 9,415 Attorney Costs: $ 102.40
Accountant Fees: $3,378.50 Accountant Costs: $176.56
In calculating the Trustee’s fees, the Court uses $100,000 in distributions as the appropriate basis for the § 326(a) calculation. The estate had a 50% interest in the wrongful death settlement and, as a result, the estate only had an interest in $150,000 in settlement funds. From those funds, the estate paid $50,000 to Debtor on account of her exemption, leaving a maximum of $100,000 in compensable distributions.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Golda Morris Represented By
Christopher Hewitt
Trustee(s):
John P Pringle (TR) Represented By Toan B Chung
11:00 AM
Docket 28
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: $ 1,480 Trustee Expenses: $ 293.60
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):
Elio Labra Saldana Represented By Lazaro E Fernandez
Joint Debtor(s):
Laura A. Ortega-Moreno Represented By Lazaro E Fernandez
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
EH
(Placed on calendar by order entered 12/10/20)
(Tele. appr. Blanca Aguirre, pro se Debtor)
Docket 65
- 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 49
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: $ 1,488.30 Trustee Expenses: $ 250.14
Attorney Fees: $ 1,500 Attorney Costs: $ 138.04
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):
Nevin Riad Represented By
Daniel S March
Trustee(s):
Todd A. Frealy (TR) Represented By Carmela Pagay
11:00 AM
(Tele. appr. Larry Simons, chapter 7 trustee)
Docket 33
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: $ 529.74 Trustee Expenses: $ 0.00
The above figures represent a $.01 reduction in fees pursuant to the statutory cap imposed by 11 U.S.C. § 326(a) and the denial of all requested expenses for failure to submit the computation of Trustee’s compensation and expenses identified in Trustee’s declaration.
APPEARANCES REQUIRED, or Trustee may decline to appear and will be deemed to have submitted to the tentative ruling.
Debtor(s):
Trevor Richard Lavoie Represented By James P Doan
Joint Debtor(s):
Jamie Suann Lavoie Represented By
11:00 AM
Trustee(s):
James P Doan
Larry D Simons (TR) Pro Se
11:00 AM
Docket 25
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: $ 1,744.90 Trustee Expenses: $ 39.49
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):
Flory Cea Bonto Represented By Christopher J Langley
Joint Debtor(s):
Jeffrey B. Bonto Represented By Christopher J Langley
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 29
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: $ 1,795.00
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):
Maria Guadalupe Saucedo Represented By Edgar P Lombera
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: $ 747.50 Trustee Expenses: $ 125.45
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):
Mary Grace Barron Represented By Sundee M Teeple
Trustee(s):
Robert Whitmore (TR) Pro Se
12:00 PM
Docket 6
- NONE LISTED -
Debtor(s):
Ryan Ray Graham Pro Se
Movant(s):
Ryan Ray Graham Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
HOLDING DATE
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20,11/4/20, 12/2/20
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, 9/9/20,11/4/20,12/2/20
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#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20, 11/4/20, 12/2/20
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
Adv#: 6:20-01057 Pringle v. Makar
Docket 12
- 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
Movant(s):
Ayad Makar Represented By
Michael A Corfield
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
2:00 PM
David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01053 Pringle v. Bebawy et al
Docket 10
- NONE LISTED -
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
Movant(s):
Amgad Bebawy Represented By Michael A Corfield
Reham Nakhil Represented By Michael A Corfield
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#: 6:20-01081 Pringle v. Labib et al
Docket 10
- NONE LISTED -
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
Movant(s):
Magda Labib Represented By
Michael A Corfield
Khair Labib Represented By
Michael A Corfield
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#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc. et al
Docket 22
- NONE LISTED -
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
Movant(s):
John 20/20 Enterprises, Inc. Represented By Michael A Corfield
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
11:00 AM
EH
Docket 249
- 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
Docket 129
- NONE LISTED -
Debtor(s):
Adolfo Gonzalez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Angelica Gonzalez Represented By Jaime A Cuevas Jr.
Movant(s):
Adolfo Gonzalez Represented By Jaime A Cuevas Jr.
Angelica Gonzalez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 94
1/7/2021
On June 14, 2018, Wallace Stanton Miles ("Debtor") filed a Chapter 13 voluntary petition. On September 14, 2018, Debtor's Chapter 13 plan was confirmed.
On June 17, 2019, US Bank Trust National Association ("Secured Creditor") filed a motion for relief from stay. Debtor and Secured creditor entered into an Adequate Protection Agreement ("APO"). Debtor defaulted under the APO by failing to make six mortgage payments. The Court on July 8, 2020 entered an order granting Secured Creditor relief from stay. Dkt. No. 68.
On November 28, 2020, Debtor filed a motion to voluntarily dismiss, citing his need to file a new bankruptcy petition in an attempt to get a second chance to stay Secured Creditor’s impending foreclosure sale. Dkt. No. 79. Debtor filed for voluntary dismissal at the same that Trustee’s motion to dismiss and Debtor’s motion to modify were pending. On November 30, 2020, the Court granted Debtor’s motion to dismiss with a 180-day bar preventing Debtor from filing a new bankruptcy petition pursuant to 11 U.S.C. §109(g)(2).
Debtor filed the instant motion on December 17, 2020 (Dkt. No. 94) seeking to set aside the 180-day bar pursuant to 11 U.S.C. § 105(a) on the basis that Section 109(g) is discretionary. On December 22, 2020, Secured Creditor filed an opposition to Debtor’s motion. Secured Creditor is anticipating a foreclosure sale that has been pushed off and rescheduled for January 14, 2021. Secured Creditor argues that it
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would be prejudiced by Debtor’s repeat filing because it would merely delay the foreclosure sale as Debtor’s mortgage is still in arrears.
11 U.S.C. § 109(g)(2) states:
(g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if-
(2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title.
In re Evansginston, a recent bankruptcy decision, outlined the split in authority in interpreting 11 U.S.C. § 109(g). 2019 WL 4410514 at *3 (Bankr. E.D. Ark. 2019). Specifically, the Evansginston court identified four new interpretations: (1) the mandatory approach; (2) the discretionary or equitable approach; (3) the pending motion approach; and (4) the causal connection approach. Id; see also Ned Waxman, Judicial Follies: Ignoring the Plain Meaning of Bankruptcy Code § 109(g)(2), 48 ARIZ. L. REV. 149 (2006).
GINSBERG & MARTIN ON BANKRUPTCY § 3.02 [5th ed. 2019] highlights some of these approaches, identifying the mandatory approach as the majority approach:
Courts are divided on the application of Section 109(g). There are three primary approaches. The majority approach is the "mandatory" approach. Under this approach, if a debtor requests and obtains a voluntary dismissal after a party moved for relief from stay, that person is not eligible for bankruptcy relief in the 180 days after dismissal, with no further inquiry needed. The "causal connection" approach requires a judicial determination of the causal relationship between the two subsections of 109(g). The "discretionary" approach endorses the mandatory approach but authorizes the court to exercise discretion when necessary to achieve justice.
Here, Debtor argues that § 109(g)(2) is discretionary and cites to In re Luna, 122 B.R.
11:00 AM
575 (B.A.P. 9th Cir. 1991) in support of this approach. In re Luna contains the following as the entirety of its legal analysis:
We decline to follow the line of authority which requires mandatory application of section 109(g)(2). Mechanical application of section 109(g)(2) would reward Home Savings for acting in bad faith and punish Luna for acting in good faith. Accordingly, because legislative enactments should never be construed as establishing statutory schemes that are illogical, unjust, or capricious, we conclude that the bankruptcy court properly declined to apply section 109(g)(2) to Luna’s second bankruptcy petition.
122 B.R. at 577 (internal citations and quotations omitted) (emphasis added). First, the Court notes that the factual situation presented in In re Luna is very unique and not analogous to this situation. There, the secured creditor acted in bad faith by violating the bankruptcy court’s order with respect to foreclosure proceedings after the case was dismissed. Id. at 576. Here, there is no evidence of bad faith on the part of Secured Creditor in proceeding with the foreclosure. It is Debtor who has failed to comply with the APO.
Second, and more importantly, this Court believes that the approach in In re Luna is precluded by Law v. Siegel, 571 U.S. 415 (2014). The Supreme Court in Law v.
Siegal clearly articulated that a bankruptcy court cannot use its general statutory authority where that authority contradicts other sections of the code:
A bankruptcy court has statutory authority to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of" the Bankruptcy Code. 11 U.S.C. § 105(a). And it may also possess "inherent power ... to sanction ‘abusive litigation practices.’" Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375–376 (2007). But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions.
It is hornbook law that § 105(a) "does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code." 2 Collier on Bankruptcy ¶ 105.01[2], p. 105–6 (16th ed. 2013). Section 105(a) confers authority to "carry out" the provisions of the Code, but it is quite
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impossible to do that by taking action that the Code prohibits. That is simply an application of the axiom that a statute's general permission to take actions of a certain type must yield to a specific prohibition found elsewhere.
571 U.S. 415 at 420–21 (citations and quotations in original). Accordingly, this Court does not believe it has authority to suspend a statute that does not provide for use of discretion. Therefore, the Court is inclined to follow the majority approach that 11
U.S.C. § 109(g)(2) is mandatory.
Moreover, that the Court should use § 105(a) to essentially correct the course of Debtor’s strategy "gone wrong" at the expense of Secured Creditor would be an inequitable application of the Court’s power. The Court disagrees with Debtor that no creditors’ rights will be disturbed by setting aside the bar. Having considered Secured Creditor’s opposition, it has a right to proceed with its foreclosure proceeding, and to find that the "explicit mandate" of § 109(g)(2) is discretionary in favor of § 105(a) would be an inappropriate application of § 105(a). See Law v. Siegal, 571 U.S. at 420–21.
For the reasons stated above, the Court is inclined to DENY the motion.
In denying the motion, the Court does not rule on whether Secured Creditor’s potentially impending foreclosure action is subject to, or excepted from, any applicable pandemic-related moratorium.
APPEARANCES REQUIRED.
Debtor(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber Thomas B Ure
11:00 AM
Movant(s):
Wallace Stanton Miles Represented By
Stuart G Steingraber Stuart G Steingraber Thomas B Ure Thomas B Ure
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 92
1/7/2021
In the instant motion (Dkt. No. 92), filed December 15, 2020, Trustee seeks to dismiss Case 6:18-bk-16064 filed under Chapter 13 by Michael D. Wickham and JoAnn Y. Wickham ("Debtors") with an order denying discharge.
Although Debtors have completed all the plan payments designated to be paid through the Trustee, they have defaulted in paying their mortgage directly to Lakeview Loan Servicing, LLC ("Lender"). In its response to Trustee’s notice of final cure payment, Lender asserts that Debtor is $11,295.07 in post-petition arrears since June 1, 2020. (Dkt. No. 92, Attachment 1).
As a preliminary matter, the Court does not formally "deny" a discharge for failure to make payments. Rather, if Debtor has not satisfied the requirements for receiving a discharge, the Court would dismiss the case rather than enter a discharge. Therefore, the Court will construe Trustee’s motion as a request to dismiss the case under 11
U.S.C. § 1307.
Here, Debtors have materially defaulted under the terms of the plan by failing to make mortgage payments. Therefore, it is proper for the Court to dismiss the case.
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Notice appearing proper, good cause appearing, and no opposition having been filed, the Court is inclined to GRANT the motion to the extent of dismissing the case.
APPEARANCES REQUIRED.
Debtor(s):
Michael D. Wickham Represented By
M. Wayne Tucker
Joint Debtor(s):
JoAnn Y. Wickham Represented By
M. Wayne Tucker
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 90
1/7/2021
On December 7, 2018, Daniel Lee Crump ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s Chapter 13 plan was confirmed on June 28, 2019.
On December 11, 2018, Cavalry SPV I, LLC as assignee for Capital One Bank (USA), N.A. ("Claimant") filed a proof of claim in the amount of $430.39 ("Claim 1"). On December 4, 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 February 3, 2012, 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.
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
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"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 1 is barred by the four-year statute of limitations, as the last payment was made over eight years
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ago. Therefore, the Court is inclined to find that Debtor has met his 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):
Daniel Lee Crump Represented By Nicholas M Wajda
Movant(s):
Daniel Lee Crump Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 31
- NONE LISTED -
Debtor(s):
Luis Castillo Jr. Represented By
Dennis A Rasmussen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jasmine Villa Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Kirsten Beck Represented By
Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Aaron Alexander Richardson Jr. Represented By
Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 20
- NONE LISTED -
Debtor(s):
Catalina J Alvarez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Wilfred Banawa Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- NONE LISTED -
Debtor(s):
Abraham Rodriguez Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 2
- 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 86
- 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
11:01 AM
Docket 112
- 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
11:01 AM
Docket 57
- NONE LISTED -
Debtor(s):
Elizabeth M Molinari Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 32
- NONE LISTED -
Debtor(s):
Lynn Karon Davis Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 85
- NONE LISTED -
Debtor(s):
Veronica A Mendoza Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Liliana Martinez Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 86
- 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 46
- NONE LISTED -
Debtor(s):
Allen Bravo Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Terry Neil Gaia Represented By Edward G Topolski
Joint Debtor(s):
Tamara Marie Devalle-Gaia Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
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 104
- NONE LISTED -
Debtor(s):
Rachel Ann Sullivan Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 73
- 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
Docket 67
- NONE LISTED -
Debtor(s):
Tamra Gillian Rehak Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- 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 73
- 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
11:01 AM
Docket 62
- NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- 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
Docket 30
- NONE LISTED -
Debtor(s):
Koppi V. Beskid Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 93
- 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 51
- 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
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Troy D. Lee Represented By
Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Debra Suzanne Towne Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
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
EH
Docket 51
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 28
- NONE LISTED -
Debtor(s):
Eric Pieters Markel Represented By Sara E Razavi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
(Tele. appr. Kirsten Martinez, rep. creditor, U.S. Bank National Association) (Tele. appr. Tina Trinh, rep. Debtor, Juan Gallardo)
Docket 42
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Juan I. Gallardo Represented By Tina H Trinh
Movant(s):
U.S. Bank National Association, not Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (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 70
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).
11:00 AM
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 GRANT the alternative request under ¶ 12 and otherwise DENY 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):
Timothy Mark Aitken Pro Se
Joint Debtor(s):
Esmeralda Aitken Pro Se
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
11:00 AM
MOVANT: WILMINGTON TRUST, NATIONAL ASSOCIATION
EH
(Tele. appr. Darlene Vigil, rep. creditor, Wilmington Trust, National Association)
Docket 51
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 relief from Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2, 3, and 12
-DENY alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
La Quetta Delaine Bush Simmons Represented By
Neil R Hedtke
Movant(s):
Wilmington Trust, National Represented By Darlene C Vigil Cassandra J Richey
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FIRST CITY CREDIT UNION
EH
(Tele. appr. Karel Rocha, rep. creditor, First City Credit Union)
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).
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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):
Bernardine Yvette Gray Represented By Neil R Hedtke
Movant(s):
First City Credit Union Represented By Karel G Rocha
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES, INC.
EH
(Tele. appr. Merdaud Jafarnia, rep. creditor, Consumer Portfolio Services, Inc.)
Docket 9
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 7 case dismissed on May 15, 2020, less than one year before the instant case was filed on December 7, 2020. Debtor not having filed a motion to continue the automatic stay, the automatic stay expired on January 6, 2021. 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):
Tinishia Thomas Pro Se
Movant(s):
Consumer Portfolio Services, Inc. Represented By
Erica T Loftis Pacheco
Trustee(s):
Steven M Speier (TR) Pro Se
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, 9/30/20
EH
(Tele. appr. Everett Green, rep. United States Trustee) (Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. John Larson)
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
Also #8 EH
(Tele. appr. Nicholas Gebelt, rep. Debtor, Markus Anthony Boyd)
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, 8/25/20
Also #7 EH
(Tele. appr. Nicholas Gebelt, rep. Debtor, Markus Anthony Boyd)
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
11:00 AM
(Tele. appr. Robert Goe, rep. trustee, Steven M. Speier)
Docket 90
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $6,100 Trustee Expenses: $22.40
Attorney Fees: $25,000 Attorney Costs: $524
As to the Application by Karl T. Anderson, CPA, Inc., the Court notes the following problems:
The time entries for 2/25/20, 6/19/20, and 6/22/20 are lumped;
The time entries for 2/27/20 and 3/18/20 appear excessive given that there is extremely little in the Applicant’s employment application that is tailored to this case, and otherwise it appears a form was used;
The time entries on 4/15/20 regarding setup on Lacerte tax software appear excessive and vague;
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The time entries on 5/21/20 appear excessive;
5. The time entries on 6/19/20, 6/22/20, 6/23/20, and 6/23/20 as to 5.5 hours for preparing 2020 federal and state tax returns appear excessive. It is also unclear why such returns were subject to a "technical and compliance" review by Mr. Savage; and
The time entry for 6/30/20 for preparing a fee application appears excessive given the substance of the application. The Court notes the draft could and should have been prepared by a paralegal.
On this basis the Application is DENIED in its entirety without prejudice. Applicant may refile with copies of underlying documentation including redacted copies of tax returns, state prompt determination request letters, and other underlying documentation as warranted.
APPEARANCES REQUIRED.
Debtor(s):
Rene Antonio Ferrer Represented By Christopher J Lauria
Joint Debtor(s):
Lucia Margarita Lopez Represented By Christopher J Lauria
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe Stephen Reider
11:00 AM
*Placed on calendar by order signed 12/22/20 EH
Docket 178
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
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
[13834 Huntervale Drive, Eastvale, CA. 92880 - APN: 144-530-004] EH
Docket 254
1/13/2021
Service: Proper Opposition: None
On December 8, 2017, Mark and Bernadette Bastorous ("Debtors") filed a Chapter 7 voluntary petition, listing an interest in the real property located at 13834 Huntervale Drive, Eastvale, CA 92880 (the "Property") with a value of $586,000. Debtors claimed a homestead exemption in the amount of $100,000.
Debtor, however, made two fraudulent transfers with respect to the Property that were subsequently avoided by the Trustee: 1) On February 9, 2017, Debtor voluntarily executed a Promissory Note in the amount of $240,000 secured by a Deed of Trust against the Property in favor of Anwar Wagdy ("Wagdy lien") 2) On March 14, 2017, Debtors transferred the Property to Violete Shenouda ("Violete") and received no value in exchange.
On September 7, 2018, Trustee filed a complaint against Violete and Wagdy
11:00 AM
commencing adversary proceeding no. 6:18-ap-01174-MH. On April 14, 2020, the Court entered an order approving a settlement agreement between each of the Defendants. The transfer to Violete would be avoided and Wagdy would receive
$23,000 from the sale of the Property. On May 4, 2020, judgements were entered on these terms.
On October 20, 2020, the Court entered a turnover order providing, inter alia, that Debtors vacate the Property within 2 days of closing if the Property is sold. On October 27, 2020, the Court approved the employment of Neiman Realty, Inc. as real estate broker and a proposed sales commission in the amount of 6%. The listing agreement was for a sales price of $699,000.
On December 22, 2020, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Yin Yang (the "Purchaser") for $700,000 (one of two offers, the lesser in the amount of $680,000). Proposed payments from the sale proceeds include: (1)
$42,000 for real estate commission; (2) $10,418.56 for other closing costs; (3)
$353,102.00 for the secured claim of Nationstar Mortgage; and (4) $23,000 for Wagdy’s settlement; (5) $240,000 for the avoidable lien as a credit to the estate; (6)
$1,311.15 for the Eastvale Downs HOA lien; (7) $29,356.76 to the IRS. This provides $240,000 for the bankruptcy estate, because the Wagdy lien, as a "consensual lien" is not vulnerable to the homestead exemption.
On December 30, 2020, Nationstar Mortgage filed a response in non-opposition of Trustee’s motion, requesting that any order entered on the motion include the language listed in its response with respect to its requirement that the full claim be paid off from the sale.
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
11:00 AM
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 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 October 2020 and obtained a sales price in about the amount of the listing agreement.
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.
With respect to the homestead exemption, 11 U.S.C. § 522(g)(1) states that:
Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section
11:00 AM
if such property had not been transferred, if--
(1)(A) such transfer was not a voluntary transfer of such property by the debtor; and
the debtor did not conceal such property; or
Trustee recovered and preserved the Violete and Wadgy transfers pursuant to Sections 541, 544, 549, 548, 550, 551. Debtors had voluntarily transferred the Property. As Debtors do not meet the first requirement, Debtors are not entitled to a homestead exemption in 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. 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 $42,000 and finds such compensation to be reasonable in the circumstances.
Finally, the Court has reviewed the declarations of the Purchaser 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.
11:00 AM
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 62
1/13/2021
On May 23, 2019, Ralph and Stacey Winn ("Debtors") filed a Chapter 7 voluntary petition. Debtors received a discharge on November 4, 2019.
Winland Electronics, Inc. ("Claimant") filed a proof of claim in the amount of
$2,431.80 ("Claim 2") on July 29, 2019. In the instant motion, Trustee objects to Claim 2 on the basis that it is barred under California law, C.C.P. § 337, by the statute of limitations, as the last invoice is dated December 1, 2014, 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.
When a creditor has filed a proof of claim that complies with the rules (thereby giving
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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 2 is barred
11:00 AM
by the four-year statute of limitations, as the last payment was made over six years ago. Therefore, the Court is inclined to find that Trustee has met his 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 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):
Ralph D. Winn Represented By Douglas A Plazak
Joint Debtor(s):
Stacey A. Winn Represented By Douglas A Plazak
Movant(s):
Howard B Grobstein (TR) Represented By Leonard M Shulman Melissa Davis Lowe
Trustee(s):
Howard B Grobstein (TR) Represented By Leonard M Shulman Melissa Davis Lowe
11:00 AM
Docket 37
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: $1,061.32 Trustee Expenses: $0.00
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):
Ignacio Lenin Prado Represented By Edgar P Lombera
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 40
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: $613.25 Trustee Expenses: $0.00
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):
Steven K Jones Represented By Neil R Hedtke
Joint Debtor(s):
Therese Leigh Jones Represented By Neil R Hedtke
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
11:00 AM
Docket 26
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: $1,550 Trustee Expenses: $119.15
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):
Elfreda Andaya Macasieb Represented By Suzette Douglas
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
EH
Docket 31
- NONE LISTED -
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
Movant(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
Trustee(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
(HOLDING DATE)
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, 9/28/20
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
2:00 PM
Maria C Armenta
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, 9/30/20
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, 9/30/20
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
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
(HOLDING DATE)
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, 9/30/20
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
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
Recovery of money/property - 548 fraudulent transfer
(HOLDING DATE)
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, 9/30/20
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
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01114 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, 9/30/20
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
2:00 PM
Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:20-01127 Pringle v. Awad
EH
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
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, 11/18/20
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
2:00 PM
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#: 6:20-01103 Pavon-Arita v. Noble et al
From: 7/22/20 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
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 12/15/20 EH
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
Movant(s):
Lakeview Loan Servicing, LLC Represented By
11:00 AM
Trustee(s):
Darlene C Vigil
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
From: 12/1/20 EH
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
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 12/15/20 EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
Docket 41
- NONE LISTED -
Debtor(s):
Armando Guzman Represented By Daniel King
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PARTNERS FEDERAL CREDIT UNION
EH
Docket 11
Service: Proper Opposition: Yes
Parties to apprise the Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Gabriel P Den Hartog Represented By Gary J Holt
Joint Debtor(s):
Todd A Den Hartog Represented By Gary J Holt
Movant(s):
Partners Federal Credit Union Represented By Yuri Voronin
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance)
Docket 7
Service: Proper Opposition: Yes
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.
In granting stay relief the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
Debtor(s):
Guillermo Lopez Arellano Represented By
11:00 AM
Movant(s):
Gregory M Shanfeld
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
EH
(Tele. appr. Arturo Cisneros, trustee)
Docket 31
1/19/2021
Service: Proper Opposition: None
On August 11, 2020, Brookville 79405 Inc. ("Debtor") filed a chapter 11 petition that is the subject of the instant motion. Debtor had incorporated in California the day before its filing on August 10, 2020 through its counsel, William E. Walls ("Walls"). Debtor’s principal is Thomas J. Downie ("Downie"). On September 9, 2020, Alexis Downie, trustee of The Brookville Trust ("Trust") conveyed the real property located at 79405 Brookville, La Quinta, CA to Debtor without authorization.
The Court takes judicial notice that on September 17, 2020, Rama Fund, LLC ("Creditor") moved for relief from stay requesting a bad faith determination under § 362(d)(4) citing the unauthorized transfer and multiple previous bankruptcies affecting the Property. In the interim, Debtor’s case was dismissed with a 180-day bar to refiling on September 29, 2020 for failure to comply with the Court’s scheduling order. The Court retained jurisdiction over sanction and § 362(d) motions. On October 14, 2020, the Court entered an order granting Creditor’s motion finding the petition was filed in bad faith.
The Property had been the subject of three previous bankruptcies, two filed by Billie Jo
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Frye ("Frye") and one filed by the Trust. Frye had conveyed her interest in the Property to herself, as trustee, on March 18, 2014. On August 16, 2019, Creditor recorded a notice of default against the Property based on Frye’s default. Frye filed the first bankruptcy petition on January 28, 2020 as a chapter 13 in Los Angeles. The case was subsequently dismissed for failure to file schedules.
Frye’s second chapter 13 bankruptcy petition was filed on March 3, 2020 again in Los Angeles and dismissed again for the same reasons as the first case. On April 7, 2020, as the third attempt, the Trust attempted to file a chapter 11 petition. Its case was dismissed on June 5, 2020 at the request of the Office of the U.S. Trustee based on the Trust’s ineligibility to be a debtor under 11 U.S.C. § 109.
On January 1, 2021, Trustee Arturo Cisneros ("Trustee") filed the instant motion moving the Court to impose sanctions against Walls and Downie in the total amount of
$9,746.85, specifically $7,746.85 to be paid to Movant for fees and costs incurred, and
$2,000 to be paid into the Court Registry on the basis that Debtor’s chapter 11 petition was frivolous and for an improper purpose. Trustee contends that the successive filings were to frustrate Creditor’s efforts to foreclose.
Fed. R. Bankr. P. 9011(c)(1)(A) authorizes a court to impose sanctions on a party’s motion, as follows:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 7004. The motion for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected, except that this limitation shall not apply if the conduct alleged is the filing of a petition in violation of subdivision (b). If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
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Fed. R. Bankr. P. 9011(c)(1)(A) (emphasis added).
Here, the 21-day safe harbor limitation does not apply, as Movant is seeking sanctions for conduct in violation of Subsection b. Id., see also In re Silberkraus, 336 F.3d 864, 868 (9th Cir. 2003)( "The clear import of [Fed. R. Bankr.P. 9011(c)(1)(A)] is that the mandatory 21 day safe harbor rule does not apply to the filing of the initial petition."). Subdivision (b) provides, in relevant part:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,1]--
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
Fed. R. Bankr. P. 9011(b) (emphasis added).
In determining whether sanctions are warranted under Rule 9011(b), the Court "must consider both frivolousness and improper purpose on a sliding scale, where the more compelling the showing as to one element, the less decisive need be the showing as to the other." In re Silberkraus, 336 F.3d at 870 citing to In re Marsch, 36 F.3d 825, 830 (9th Cir.1994). "A frivolous paper is one that is both baseless and made without a reasonable and competent inquiry. That is, it is neither well-grounded in fact and warranted by existing law nor a good faith argument for the extension, modification, or reversal of existing law." In re Flashcom, Inc., 503 B.R. 99, 127 (C.D. Cal.
2013), aff'd, 647 Fed. Appx. 689 (9th Cir. 2016)(unpublished) citing to In re Brooks– Hamilton, 400 B.R. 238, 252 (9th Cir. BAP 2009). "An attorney files a paper for an improper purpose if he or she files it to harass or to cause unnecessary delay or needless increase in the cost of litigation." Id. at 132.
Here, Trustee has shown that the petition was both frivolous and filed for the improper purpose of deterring the Creditor. As Trustee argued, Debtor did not file the petition for the purposes of reorganization, as it was formed one day prior to filing the petition and had no debts to reorganize. Moreover, the petition was filed simply to delay the Creditor from foreclosing on the Property because Debtor transferred the Property to the estate
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after it filed the petition, after previously failing three times to similarly attempt to frustrate the Creditor through improper bankruptcy filings. Additionally, the Court has found that the petition was filed in bad faith when ruling on Creditor’s relief from stay motion. Clearly, the petition was baseless filed for the purposes of causing unnecessary delay and resulting in needless litigation costs.
Fed. R. Bankr. P. 9011(c)(2) allows the Court to impose sanctions, as follows:
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
Fed. R. Bankr. P. 9011(c)(2) (emphasis added).
On these facts, given the four successive bankruptcy filings, unauthorized Property transfer, and baseless chapter 11 petition, it is appropriate to require that Walls and Downie, the parties responsible, pay a court penalty and reimburse Trustee for his fees and costs to effectively deter future and similar conduct.
Moreover, pursuant to Local Rule 9013-1(h), the Court may and does deem the failure to oppose the motion as consent to the requested relief.
The Court is inclined to GRANT the motion in its entirety, and ORDER William E. Walls and Thomas J. Downie to pay sanctions in the following amounts:
To Trustee: $7,746.85 To the Court: $2,000
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
Movant(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
Trustee(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
10:00 AM
From: 1/6/21 EH
(Tele. appr. Mark S. Blackman, rep. creditor, 21st Mortgage Corporation)
Docket 8
- NONE LISTED -
Debtor(s):
Dolores D Gracia Represented By Daniel King
Movant(s):
21st Mortgage Corporation Represented By Amy Dukes
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Also #3 EH
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 138
On April 28, 2015, Home Security Stores, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On May 4, 2015, Trustee filed a notice of assets, implementing a claims bar deadline of August 7, 2015.
On May 15, 2015, Eastern CCTV ("Eastern") filed a proof of claim for an unsecured claim in the amount of $6,793.51 ("Claim 2"). On August 10, 2015, Bay Alarm Company ("Bay Alarm") filed a proof of claim for an unsecured claim in the amount of $36 ("Claim 28").
On December 17, 2020, Trustee filed: (a) a motion to disallow claim 2; and (b) a motion to allow Claim 28 as late-filed. The Court has not received opposition to either
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motion.
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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Claim 2
Regarding Claim 2, Trustee argues that the claim should be disallowed because it is not supported by any documentation.
FED. R. BANKR. P. Rule 3001(c)(1) provides that "when a claim . . . is based on a writing, a copy of the writing shall be filed with the proof of claim." Here, Claim 2 is for goods sold and is in the amount of $6,793.51. Therefore, Rule 3001(c)(1) likely applies to Claim 2.
FED. R. BANKR. P. Rule 3001(f) provides that: "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, claims 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).
Therefore, there being no presumption that Claim 2 is entitled to validity, and Eastern 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 disallow Claim 2.
Claim 28
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Regarding Claim 28, 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 28 was filed three days after the claims bar deadline, and is therefore late. The Court is concerned, however, that the instant motion does not actually raise a justiciable case or controversy. See, e.g., DaimlerChrysler Corp v. Cuno, 547 U.S.
332, 341 (2006) (limiting jurisdiction to actual cases or controversies). Additionally, because this motion seeks a classification under § 726, but the Court approves a trustee’s proposed order of distribution under § 726 in the context of a hearing on the Trustee’s final report, this motion appears to be unnecessary.
The Court is inclined to SUSTAIN the objection to Claim 2, disallowing the claim in its entirety, and OVERRULE the objection to Claim 28 as not yet ripe.
APPEARANCES REQUIRED.
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
11:00 AM
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
Also #2 EH
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 140
On April 28, 2015, Home Security Stores, Inc. ("Debtor") filed a Chapter 7 voluntary petition. On May 4, 2015, Trustee filed a notice of assets, implementing a claims bar deadline of August 7, 2015.
On May 15, 2015, Eastern CCTV ("Eastern") filed a proof of claim for an unsecured claim in the amount of $6,793.51 ("Claim 2"). On August 10, 2015, Bay Alarm Company ("Bay Alarm") filed a proof of claim for an unsecured claim in the amount of $36 ("Claim 28").
On December 17, 2020, Trustee filed: (a) a motion to disallow claim 2; and (b) a motion to allow Claim 28 as late-filed. The Court has not received opposition to either
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motion.
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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Claim 2
Regarding Claim 2, Trustee argues that the claim should be disallowed because it is not supported by any documentation.
FED. R. BANKR. P. Rule 3001(c)(1) provides that "when a claim . . . is based on a writing, a copy of the writing shall be filed with the proof of claim." Here, Claim 2 is for goods sold and is in the amount of $6,793.51. Therefore, Rule 3001(c)(1) likely applies to Claim 2.
FED. R. BANKR. P. Rule 3001(f) provides that: "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, claims 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).
Therefore, there being no presumption that Claim 2 is entitled to validity, and Eastern 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 disallow Claim 2.
Claim 28
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Regarding Claim 28, 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 28 was filed three days after the claims bar deadline, and is therefore late. The Court is concerned, however, that the instant motion does not actually raise a justiciable case or controversy. See, e.g., DaimlerChrysler Corp v. Cuno, 547 U.S.
332, 341 (2006) (limiting jurisdiction to actual cases or controversies). Additionally, because this motion seeks a classification under § 726, but the Court approves a trustee’s proposed order of distribution under § 726 in the context of a hearing on the Trustee’s final report, this motion appears to be unnecessary.
The Court is inclined to SUSTAIN the objection to Claim 2, disallowing the claim in its entirety, and OVERRULE the objection to Claim 28 as not yet ripe.
APPEARANCES REQUIRED.
Debtor(s):
Home Security Stores, Inc. Represented By Winfield S Payne III
11:00 AM
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
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, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 597.25
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):
Belinda Torres Represented By Michael L Kellogg
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: $ 1,388.44 Trustee Expenses: $ 90.70
The above fees represent a $.01 reduction pursuant to the calculation required by 11
U.S.C. § 326(a).
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):
Donald Edward Phoenix Jr. Represented By
Stuart G Steingraber
Joint Debtor(s):
Crystal Dawn Phoenix Represented By
Stuart G Steingraber
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
(Tele. appr. Mark N. Strom, rep. Judgment Creditor, New Falls Corporation)
Docket 23
On September 25, 2020, Jagjit Singh ("Debtor") filed a Chapter 7 voluntary petition. On November 18, 2020, the Court authorized a Rule 2004 examination of Debtor by New Falls Corporation ("Creditor"). On November 30, 2020, the Court authorized a Rule 2004 examination of Debtor’s employer by Creditor. On December 24, 2020, Creditor filed a motion to extend the deadlines for filing a complaint objecting to discharge and for filing a non-dischargeability complaint.
Creditor’s motion asserts that Creditor obtained a judgment against Debtor in state court in the amount of $62,306 on September 26, 2019. Creditor also asserts that Debtor accumulated approximately $140,000 in credit card debt in the eighteen months preceding the instant bankruptcy filing.
Creditor held a Rule 2004 examination on December 14, 2020. Creditor states that at the Rule 2004 examination, Debtor did not provide many of the required documents. The parties agreed to continue the examination for not less than thirty days for Debtor
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to obtain the remaining documents. The original Rule 2004 examination, however, was held only fourteen days prior to the Rule 4004(a) and Rule 4007(c) deadlines.
FED. R. BANKR. P. Rule 4007(c) states:
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.
Similarly, FED. R. BANKR. P. Rule 4004(b)(1) provides: "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."
Here, Creditor timely filed a motion to extend the deadline. The Court finds that Creditor has established cause for an extension under Rule 4007(c). Specifically, Creditor has established that it moved promptly to request information to enable it to analyze Debtor’s financial affairs. Nevertheless, for the reasons stated in the motion, Debtor has not yet provided sufficient information. Debtor’s lack of full cooperation in Creditor’s discovery efforts constitutes cause for a brief extension. See, e.g., In re McCormack, 244 B.R. 203, 208 (Bankr. D. Conn. 2000). Therefore, the Court finds that Creditor’s requested extension is warranted.
Furthermore, the Court deems Debtor’s failure to file opposition to be consent to the
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relief requested pursuant to Local Rule 9013-1(h).
The Court is inclined to GRANT the motion, extending the Rule 4004(a) and Rule 4007(c) deadlines to March 1, 2021.
APPEARANCES REQUIRED.
Debtor(s):
Jagjit Singh Represented By
Keith Q Nguyen
Trustee(s):
Steven M Speier (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, 11/24/20, 12/1/20
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
Adv#: 6:20-01171 Daff (TR) v. Karadas
(Tele. appr. Charles Daff, Plaintiff)
Docket 12
On November 20, 2017, Sean Karadas ("Debtor") filed a Chapter 7 voluntary petition. On March 19, 2018, Debtor received his discharge.
On September 19, 2018, Trustee filed a motion for turnover of property of the estate. On October 24, 2018, the Court granted the motion, ordering Debtor to turn over
$327,653 in loan proceeds. On January 22, 2019, the Court issued an order to show cause why Debtor should not be held in contempt for failure to comply with the turnover order. After a hearing held on February 27, 2019, the Court found Debtor in contempt and sanctioned him an additional $3,896.05. Debtor, however, took no action to purge the contempt and, on June 27, 2019, the Court issued a body detention order. The United States Marshals, however, have not yet located Debtor, reporting that he may have moved to Turkey.
On October 11, 2020, Trustee filed a complaint against Debtor seeking to revoke his discharge under 11 U.S.C. § 727(a)(6)(A). On November 17, 2020, the Court entered
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Debtor’s default. On December 14, 2020, Trustee filed a 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 8990 19th St., #296, Rancho Cucamonga, CA 91701. This address is incorrect – Defendant’s address of record in the bankruptcy case is 8990 19th St., #294, Rancho Cucamonga, CA 91701. The Court notes that while apartment 296 was Debtor’s listed address when he filed the petition, Debtor filed a change of address on May 29, 2018, switching his address to apartment 294.
Trustee not having properly served Defendant with the summons and complaint (or the instant motion), the Court is inclined to DENY the motion without prejudice.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Movant(s):
Charles W Daff (TR) Pro Se
Charles W Daff (TR) 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#: 6:20-01171 Daff (TR) v. Karadas
From: 12/16/20 EH
(Tele. appr. Charles Daff, Plaintiff)
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#: 6:20-01084 Pringle v. Solomen
Docket 13
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Marcos Solomen Represented By Scott Talkov
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Marcos Solomen Represented By Scott Talkov
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By
2:00 PM
David M Goodrich Reem J Bello
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor, Tracy Crooks)
Docket 137
- NONE LISTED -
Debtor(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Movant(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 83
1/21/2021
Service: Proper Opposition: None
Luis A. Jovel ("Debtor") filed a chapter 13 petition for relief on April 4, 2017. Debtor’s chapter 13 plan was confirmed on July 7, 2017. In the instant motion, Debtor seeks to substitute his current attorney, Manfred Schroer, and continue in pro se.
The Court having reviewed the motion finds good cause shown. Additionally, as Debtor has been on plan for approximately four years, pursuant to LBR 2091-1 (e)(2), the Court finds that substitution should not cause unreasonable delay to the case. Therefore, the Court is inclined to GRANT the motion.
APPEARANCES REQUIRED.
Debtor(s):
Luis A Jovel Represented By
Manfred Schroer
Movant(s):
Luis A Jovel Represented By
11:00 AM
Trustee(s):
Manfred Schroer
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 92
- 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
11:00 AM
Also #3 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 95
- 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
Movant(s):
Joe Wallace Brown Represented By Christopher J Langley Michael Smith
Yolanda Denise Moore Represented By Christopher J Langley Michael Smith
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #6 EH
Docket 43
- NONE LISTED -
Debtor(s):
Terry Neil Gaia Represented By Edward G Topolski
Joint Debtor(s):
Tamara Marie Devalle-Gaia Represented By Edward G Topolski
Movant(s):
Terry Neil Gaia Represented By Edward G Topolski
Tamara Marie Devalle-Gaia Represented By Edward G Topolski Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 39
- NONE LISTED -
Debtor(s):
Terry Neil Gaia Represented By Edward G Topolski
Joint Debtor(s):
Tamara Marie Devalle-Gaia Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 77
1/21/2021
Service: Proper Opposition: None
Alexander J. and Ingelborg M. Perfinowicz ("Debtors") filed a chapter 13 petition for relief on November 29, 2018. Debtor’s chapter 13 plan was confirmed on April 30, 2019. In the instant motion, Debtors seek to substitute their current attorney, Manfred Schroer, and continue in pro se.
The Court having reviewed the motion finds good cause shown. Additionally, as Debtors have been on plan for approximately three years, pursuant to LBR 2091-1 (e) (2), the Court finds that substitution should not cause unreasonable delay to the case. Therefore, the Court is inclined to GRANT the motion.
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):
Alexander J Perfinowicz Represented By Manfred Schroer
Ingeborg Maria Pefinowicz Represented By Manfred Schroer Manfred Schroer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 49
- NONE LISTED -
Debtor(s):
Tony Andy Garcia II Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. James Hornbuckle, rep. Debtors, Tommy and Lidia Anderson)
Docket 39
1/21/2021
Service: Proper Opposition: None
On January 3, 2021, Tommy Mel and Lidia Elaine Anderson ("Debtors") filed a Chapter 13 voluntary petition. On April 3, 2020, Debtor’s Chapter 13 plan was confirmed.
On October 6, 2020, Trustee filed an unopposed motion to dismiss for failure to make plan payments. On October 28, 2020, the Court dismissed the case.
On December 29, 2020, Debtors filed the instant motion to vacate dismissal citing FED.
R. CIV. P. Rule 60(b), claiming it is appropriate to vacate the dismissal order due to Debtors excusable neglect of 1) not making plan payments, and 2) not responding to Counsel James D. Hornbuckle’s attempt to contact them to discuss converting to a Chapter 7. The Court notes that Counsel’s argument lacks legal analysis, and moreover, his citation to case law does not support his argument. Specifically, Counsel cites to an irrelevant case, In re Krueger, where, the court "reimposed" the automatic stay "upon entry of the order vacating the prior dismissal. Id.
On December 24, 2020, Trustee submitted comments indicating approval to vacate dismissal on the condition that Debtors convert to Chapter 7 within seven days after the
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order vacating dismissal is entered.
Debtors rely on FED. R. CIV. P. Rule 60(b)(1), incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024, which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect." Debtors argue that the case was dismissed due to their excusable neglect of their counsel, however; the Court notes, Counsel never opposed the motion to dismiss, which was the time to explain his intention to covert the case to a Chapter 7.
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 establishes 1) Debtors failed to make plan payments, which is precisely a reason to dismiss a case; 2) Counsel was unable to contact Debtors, and most significantly; 3) Counsel made no effort to oppose the motion to dismiss. In sum, the evidence amounts to a showing that Debtors and Counsel were merely inattentive to Trustee’s motion to dismiss. Whatever neglect exists, is at best carelessness, and thus does not amount to "excusable." Accordingly, Debtors have failed to establish grounds for Rule 60(b) relief.
Moreover, the main reason that Debtors advance in support of vacating dismissal is so that they can convert the dismissed Chapter 13 case to a Chapter 7. The Court fails to see why it is necessary to vacate dismissal when Debtors can file a new petition under Chapter 7, particularly where Rule 60(b) relief is not warranted. For Debtors and Counsel to essentially plead "inattentiveness" to the bankruptcy process just to get another "bite of the apple," is an inappropriate plea for the use of the Court’s equitable powers. Debtors can have their second bite, but through the same process that all debtors get their second chance—by filing a new petition.
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On the record before the Court and for the foregoing reasons, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Tommy Mel Anderson Represented By
James D. Hornbuckle
Joint Debtor(s):
Lidia Elaine Anderson Represented By
James D. Hornbuckle
Movant(s):
Tommy Mel Anderson Represented By
James D. Hornbuckle
Lidia Elaine Anderson Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
For an order voiding IRS tax lien to be removed from the record;
For an order that the plan is a 36-month plan, paying all secured and priority taxes owed to both the IRS and the State of California in full first; then up to a maximum 27% dividend to all approved unsecured claims in a total of 36 months; 3) For an order that the court will be governed by and not the claim filed by the debtor on behalf of the IRS earlier on;
For an order that the court acknowledge the IRS Proof of Claim of $ 55,828.61 and order the trustee to pay immediately a) Secured tax sum of $ 8,633.29 from existing accumulated funds and then b) Priority tax sum of $ 36,055.87 as soon as possible along with State of California Priority taxes;
For an order that the trustee shall pay the Franchise Tax Board of California the Priority tax sum of $ 14,300.29 as soon as possible as a priority along with the IRS secured and priority taxes and not on a non-priority monthly basis spread over 36 months
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Mary Jansen, Debtor)
(Tele. appr. Tushar Jansan, Debtor)
Docket 53
- NONE LISTED -
Debtor(s):
Tushar Anthony Jansen Pro Se
Joint Debtor(s):
Mary Frances Jansen Pro Se
11:00 AM
Movant(s):
Tushar Anthony Jansen Pro Se
Mary Frances Jansen Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 12/3/20 Also #12
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Jennifer George, rep. Debtors, Jesus and Virginia Pabloff) (Tele. appr. Jolene Tanner, rep. creditor, United States of America)
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
EH
(Tele. appr. Jolene Tanner, rep. creditor, United States of America) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 35
1/21/2021
Service Proper Opposition Filed
On September 14, 2020, Jesus and Virginia Pabloff ("Debtors") filed a Chapter 13 voluntary petition. Debtors hearing to confirm their chapter 13 plan is set for January 21, 2021.
On October 9, 2020, the Internal Revenue Service ("IRS") filed a proof of claim in the total amount of $169,454.84, comprised of a secured claim in the amount of
$112,807.17, unsecured priority claim in the amount of $53,763.81, and an unsecured claim in the amount of $2,883.86 ("Claim 7").
On December 14, 2020, Debtors filed this instant motion objecting to Claim 7. Debtors argue that the IRS failed to account for taxes already paid in their previous bankruptcy case, which was filed on May 23, 2018 and dismissed on June 8, 2020 ("Case 1"), and have factored in liens not included in the IRS’s previous claim. According to Debtors the total claim should be approximately $149,714.49, and the secured portion should be $9,850 plus any penalties and interest incurred.
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In support of their contention, Debtors have provided a declaration stating that they have paid a total of $98,680.82 towards the IRS’s previous claim of $188,853.86. In the previous claim, the total secured amount was $17,175.04. According to the Trustee’s final report, Debtors paid $11,027.15 ($9,850.25 in taxes + $1,176.90 in penalties).
Debtors also advance what appears to be an underdeveloped and unclear argument challenging the attachment of the secured liens, the entirety of which consists of these two statements:
The agent for the Creditor is stating he back dated the liens filed in 2017 to include the now secured liens on October 9, 2020, while the Debtor’s[sic] are in active bankruptcy case.
The Creditor is asserting it has the ability to add liens into claims back date them and during the pendency of a bankruptcy case without Court approval.
Dkt. No. 35, Pg. 4.
On January 7, 2021, the IRS filed an opposition arguing Debtors’ have not met their burden to overcome the prima facie validity of Claim 7. Additionally, upon reviewing Claim 7, in accordance with the Declaration of Rakesh Shah, the IRS amended Claim 7 ("Claim 7-2") in the total amount of $166,205.95, determining Debtors’ tax liability was $3,248.89 less due to the previous payments. This amount accounts for tax liability and interest which accrued while Debtors were in their previous bankruptcy in years 2018 and 2019. Additionally, Debtors owe approximately $12,602 for the 2020 tax year. The amount owing on the secured claim portion is now $109,558.28. The secured liens appear to have arisen in the years 2014-2017 prior to the first petition. (Dkt. No. 41, IRS Ex. 2, pg. 23).
.
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
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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.
Here, the totality of Debtors’ evidence is their declaration pointing to the 2018 previous claim and the amounts paid to the Trustee. With respect to the previous payments, the IRS contends they have amended Claim 7 to account for those payments. However, the biggest discrepancy in the parties’ assertions is the amount of the secured claim; Debtors argue the correct amount is $9,850.25, but the IRS proof of Claim 7-2 shows the secured amount as $109,558.28.
That the Debtors have provided the amount of the previous claim does not amount to a showing of "facts tending to defeat the IRS’s claim by probative force equal to that of the allegations of the proofs of claim themselves." See id. In fact, Debtors fail to actually show how the evidence they provided attacks the validity of Claim 7. On that basis alone, the Court is inclined to find that Debtors have not met their burden in objecting to the validity of the claim.
In any case, in response to Debtors’ contention that the federal tax liens attached presumably in violation of the stay, upon reviewing the proof of claim filed in Case 1 in
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comparison to the proof of Claim 7-2, the Court notes that the unsecured tax liability from Case 1 appears to have been "elevated" to secured. (See Dkt. No. 35, Debtors’ Ex. 3, page 5 and Dkt. No. 41, IRS Ex. 2, pg. 23). As Case 1 was dismissed on June 8, 2020 and the present case was filed on September 14, 2020, Debtors had no bankruptcy protections to prevent the tax liens from attaching, as the IRS argues federal tax liens automatically attach to Debtors’ property upon assessment. See 26 U.S.C. §§ 6321-22. Moreover, the notice of federal tax lien has a recording date of July 19, 2017. As there is enough equity in Debtors’ property in the present case, the tax lien attaches. This explains the discrepancy between the previous secured claim amount and the present secured claim amount.
On the record before the Court and for the foregoing reasons, the Court is inclined to OVERRULE the objection as the Debtors have not met their burden, and also as MOOT given the IRS has filed amended Claim 7-2.
APPEARANCES REQUIRED.
Debtor(s):
Jesus Pabloff Represented By
Tom A Moore
Joint Debtor(s):
Virginia Pabloff Represented By Tom A Moore
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Angeline Matthews Represented By Scott Kosner
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Olga M De Gonzalez Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jack Kelly Jackson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Robert Esquivel Jr. Represented By Paul Y Lee
Joint Debtor(s):
Caryn Leslie Esquivel Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 185
- NONE LISTED -
Debtor(s):
Michael Brian Goodrich Sr. Represented By Christopher J Langley Michael Smith
Joint Debtor(s):
Kimberly JoAnn Carter Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 59
- NONE LISTED -
Debtor(s):
David Becerra Represented By
Glenn Ward Calsada
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 120
- 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 121
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. John Brady, rep. Debtors, Bruce and Ann Ruggles)
Docket 211
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 105
- 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
EH
Docket 67
- 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
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Sundee Teeple, rep. Debtors, Jonathon and Jacqueline Stoner)
Docket 73
- 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):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 60
- NONE LISTED -
Debtor(s):
Kimberley D Blevins Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. James Hornbuckle, rep. Debtor, Pamela Bradford)
Docket 48
- NONE LISTED -
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Adv#: 6:20-01081 Pringle v. Labib et al
EH
(Tele. appr. Michael Corfield, rep. Defendants, Makar; Bebawy; Mikhael; Eskandar; John 2020 Enterprise; Labib; and Yassa)
(Tele. appr. David Goodrich, rep. Plaintiff John Pringle)
(Tele. appr. Andy Warshaw, rep. Defendant/Respondent, St. George Medical Office) - LISTEN ONLY
Docket 10
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four
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avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured
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notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must
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go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as
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such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether
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the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have
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received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent
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conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing
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in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
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TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue, the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
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Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc. et al
From: 1/6/21 EH
(Tele. appr. Michael Corfield, rep. Defendants, Makar; Bebawy; Mikhael; Eskandar; John 2020 Enterprise; Labib; and Yassa)
(Tele. appr. David Goodrich, rep. Plaintiff John Pringle)
(Tele. appr. Andy Warshaw, rep. Defendant/Respondent, St. George Medical Office) - LISTEN ONLY
Docket 22
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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.
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On May 11, 2020, Trustee filed forty-five avoidance actions, including the four avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment
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Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
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party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
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¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as
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whether transfers were made within the limitations period or whether the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second
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settlement prior to filing bankruptcy. As a result, it would appear that defendants have received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had
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fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants
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having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
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TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue, the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
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Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01057 Pringle v. Makar
EH
(Tele. appr. Michael Corfield, rep. Defendants, Makar; Bebawy; Mikhael; Eskandar; John 2020 Enterprise; Labib; and Yassa)
(Tele. appr. David Goodrich, rep. Plaintiff John Pringle)
(Tele. appr. Andy Warshaw, rep. Defendant/Respondent, St. George Medical Office) - LISTEN ONLY
Docket 12
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four
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avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured
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notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must
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go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as
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such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether
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the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have
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received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent
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conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing
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in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
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TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue, the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
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Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01053 Pringle v. Bebawy et al
EH
(Tele. appr. Michael Corfield, rep. Defendants, Makar; Bebawy; Mikhael; Eskandar; John 2020 Enterprise; Labib; and Yassa)
(Tele. appr. David Goodrich, rep. Plaintiff John Pringle)
(Tele. appr. Andy Warshaw, rep. Defendant/Respondent, St. George Medical Office) - LISTEN ONLY
Docket 10
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four
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avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured
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notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must
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go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as
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such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether
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the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have
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received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent
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conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing
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in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
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TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue, the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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#: 6:20-01068 Pringle v. Gerges
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):
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#: 6:20-01073 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)
*Default Judgment against Raafat Yousef entered 12/22/20 From: 7/27/20, 9/28/20, 10/14/20, 11/18/20
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
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#: 6:20-01077 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Represented By
Michael A Wallin
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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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
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#: 6:20-01054 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, 9/28/20,11/30/20 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
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#: 6:20-01055 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01059 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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#: 6:20-01062 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, 9/28/20,11/30/20 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: 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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
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#: 6:20-01083 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, 9/28/20,11/30/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous 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#: 6:20-01084 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, 9/28/20,11/30/20 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Marcos Solomen Represented By Scott Talkov
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#: 6:20-01086 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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
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#: 6:20-01088 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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, 9/28/20,11/30/20 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: 9/30/20,11/30/20 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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01127 Pringle v. Awad
From: 11/30/20 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
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#: 6:20-01061 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, 9/28/20,11/30/20 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
11:00 AM
MOVANT: NATIONSTAR MORTGAGE
EH
(Tele. appr. Dane Exnowski, rep. creditor, Nationstar Mortgage LLC)
Docket 84
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
11:00 AM
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski Arnold L Graff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA Inc.)
Docket 69
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 claim arising from the foreign action is subject to equitable
11:00 AM
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 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.
11:00 AM
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 weighs against granting relief from stay, because Movant has not yet taken any steps toward recovering the insurance proceeds, the remainder of the factors weigh in favor of relief from stay being granted because Movant seeks recovery from insurance proceeds and agrees that the "stay will remain in effect as to enforcement of any resulting judgment against the Debtor or bankruptcy estate." Because Movant is not trying to collect from 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)
-GRANT relief from 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):
Irene Elizabeth Arias Represented By Steven A Alpert
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
92557
MOVANT: DEUTSCHE BANK
EH
(Tele. appr. John Brady, rep. Debtor, Tanyua Gates-Holmes)
(Tele. appr. Austin Nagel, rep. creditor, Deutsche Bank National Trust)
Docket 117
Movant to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Movant(s):
Deutsche Bank National Trust Represented By Kirsten Martinez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROUNDPOINT MORTGAGE SERVICING INC.
EH
Docket 28
- NONE LISTED -
Debtor(s):
Theresa Ann Cesiro Represented By Steven A Alpert
Movant(s):
RoundPoint Mortgage Servicing Represented By
Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
From: 1/5/21 EH
(Tele. appr. Austin Nagel rep. Toyota Motor Credit)
Docket 50
- NONE LISTED -
Debtor(s):
David Ray Bowman Represented By Carey C Pickford
Joint Debtor(s):
Michelle Jan Bowman Represented By Carey C Pickford
Movant(s):
TOYOTA MOTOR CREDIT Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
(Tele. app. Vincent Frounjian, rep. creditor, Honda Lease Trust)
Docket 40
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
-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):
Sharna Dobbins Represented By Todd L Turoci
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
92377
MOVANT: CARRINGTON MORTGAGE SERVICES, LLC
EH
(Tele. appr. Megan Lees, rep. creditor, Carrington Mortgage Services, LLC)
Docket 50
- NONE LISTED -
Debtor(s):
George Clarence Maret Represented By Dana Travis
Joint Debtor(s):
Elizabeth Ann Maret Represented By Dana Travis
Movant(s):
Carrington Mortgage Services, LLC Represented By
Robert P Zahradka Diane Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ONEMAIN FINANCIAL GROUP, LLC
EH
Docket 62
- NONE LISTED -
Debtor(s):
Emmanuel Pastor Represented By Gary S Saunders
Joint Debtor(s):
Razel Pastor Represented By
Gary S Saunders
Movant(s):
THE DUNNING LAW FIRM APC Represented By
Donald T Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 1/5/21 EH
(Tele. appr. Nancy Lee, rep. creditor, Nationstar Mortgage LLC) (Tele. appr. Arlene Tokarz, rep. Debtor, Merle Johnson)
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 request under ¶ 2;
-GRANT request under ¶ 3;
-GRANT request for relief from § 1301(a) co-debtor stay;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 12;
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
11:00 AM
Debtor(s):
Merle Roger Johnson Represented By Arlene M Tokarz
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
Docket 24
- NONE LISTED -
Debtor(s):
Jason Wood Represented By
Natalie A Alvarado
Joint Debtor(s):
Janella Wood Represented By Natalie A Alvarado
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Austin Nagel, rep. creditor, Nissan Motor Acceptance Corp.)
Docket 15
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 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):
Efrain Rodriguez Represented By Alec L Harshey
Joint Debtor(s):
Claudia Elena Rodriguez Represented By Alec L Harshey
11:00 AM
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Kirsten Martinez
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 13
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
-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):
Imelda Vasquez Represented By Douglas L Weeks
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
(Tele. appr. Paul Reza, rep. creditor, SchoolsFirst Federal Credit Union)
Docket 11
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
APPEARANCES WAIVED. 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 Hernandez Jr. Represented By Benjamin R Heston
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA Inc.)
Docket 7
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 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):
Hilaria P Garcia Represented By James G. Beirne
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: W-WORLD USA, LLC
CASE DISMISSED ON 1/25/21
EH
(Tele. appr. Julian Bach, rep. moving party W-World USA, LLC)
Docket 9
Judge Houle’s self-calendaring procedures provide that: "Telephonic notice of the date, time and place of the hearing on the motion must be given to all parties entitled to receive notice not later than 5 court days prior to the hearing, and proof of service of such telephonic notice must be filed not later than 3 court days prior to the hearing." Local Rule 4001-1(c)(1)(A) provides that: "If the motion seeks relief from the stay to proceed with an unlawful detainer action involving a residential property with a month-to-month tenancy, tenancy at will, or a tenancy terminated by an unlawful detainer judgment, the movant must serve only the debtor and debtor’s attorneys." Here, Movant not having provided telephonic notice to Debtor, notice is improper. Therefore, the Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Lucy Arzate Represented By
Thinh V Doan
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01129 Visiting Nurse Association of the Inland Counties v. Del Gado et al
*Dismissed as to Defendants Bruce Gordon, Stuart Furman, Lois Beckman, Gema Ptasinski, Mary Anne Benzakein, Mike Rusnak, Maria Lozano, Karen Emery, Jean Kryger, and Oscar Brambila
From: 9/29/20,1/5/21 EH
(Tele. appr. David Goodrich, rep. Debtor, Visiting Nurse Association)
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
U.S.C. §§ 108 and 546(a) EH
(Tele. appr. David Goodrich, rep. Debtor, Visiting Nurse Association)
Docket 910
On August 15, 2018, Visiting Nurse Association of the Inland Counties ("Debtor") filed a Chapter 11 voluntary petition. Debtor’s Chapter 11 plan was confirmed pursuant to order entered December 10, 2020. The Chapter 11 plan transferred Debtor’s claims, including avoidance actions, to a liquidating trust.
The § 546(a) deadline in this case was originally August 15, 2020. That deadline has previously been extended on two occasions: (1) on July 30, 2020, the Court entered an order extending the deadline to November 16, 2020; and (2) on November 17, 2020, the Court entered an order extending the deadline to February 5, 2021.
On January 12, 2021, the liquidating trustee filed a motion seeking a further extension of ninety days (to May 6, 2021). The motion generally asserts that Debtor used "an antiquated financial bookkeeping system" and that the procedure for reconstructing and analyzing Debtor’s records was "extremely time consuming."
2:00 PM
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, the current § 546(a) deadline is February 5, 2021.
As noted by the liquidating trustee, 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.
2:00 PM
Here, the evidence presented in the motion in support of the third request to equitably toll the § 546(a) deadline is lacking in detail. More specifically, it is not clear what progress has been made since the previous request for an extension was filed on November 9, 2020. As a result, Movant has not provided evidence to establish the two elements of the Milby test – diligence in pursuit of rights and extraordinary circumstances – that would justify the application of equitable tolling.
Movant to apprise the Court of the status of the investigation.
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
2:00 PM
EH
(Tele. appr. Dawn Coulson, rep. interested party, Dawn Coulson)
Docket 22
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
10:00 AM
EH
(Tele. appr. Sara De La Mora, pro se Debtor)
Docket 9
- NONE LISTED -
Debtor(s):
Sara De La Mora Represented By Marlin Branstetter
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #3 EH
Docket 13
- NONE LISTED -
Debtor(s):
Mani Mobasser Jr Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
10:00 AM
Also #2 EH
Docket 11
- NONE LISTED -
Debtor(s):
Mani Mobasser Jr Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
*Placed on calendar by order signed 12/22/20 From: 1/13/21
EH
Docket 178
- NONE LISTED -
Debtor(s):
Donald Sutcliffe Pro Se
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
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
(Tele. appr. Everett Green, rep. United States Trustee's Office)
(Tele. appr. Lawrence Hoodack, rep. Defendants Ray Zamut and Mary Zamut)
Docket 258
2/3/2021
Service proper Opposition filed
On December 8, 2017, Mark Bastorous and Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. Debtors’ schedules and statement of financial affairs listed 37 related business entities.
On May 1, 2020, the Court entered an order consolidating Debtors’ bankruptcy estate with the 37 related entities. Soon after, Trustee filed forty-six complaints against individuals and entities contending they received fraudulent transfers from the related entity, Professional Investment Group, LLC ("adversary proceedings"). The factual allegations in the complaints are virtually identical, except for the amounts received by defendants. Thus far, Trustee has entered into separate settlement agreements with ten defendants.
11:00 AM
In the instant motion, filed on December 23, 2020, Trustee seeks to file the 9019 motion relating to the settlements under seal, as well as to serve the motion with the settlement amounts, repayment terms, and the basis for settlement redacted. Trustee argues his position with respect to the other adversary proceedings will be prejudiced, as disclosure may "chill" future settlement offers and negotiations. Trustee cites to 11 U.S.C. § 105(a) in support of the Court’s authority to grant the motion.
On January 20, 2021, the United States Trustee ("U.S. Trustee") filed an opposition to Trustee’s motion, arguing that restricting access to the 9019 motion for bargaining leverage does not fall into any category of documents that may be filed under seal pursuant to 11 U.S.C. § 107.
Local Rule 5003-2(c)(1) provides that requests for filing under seal are subject to 11
U.S.C. § 107. In relevant part, 11 U.S.C. § 107 states:
Except as provided in subsections (b) and (c) and subject to section 112, a paper filed in a case under this title and the dockets of a bankruptcy court are public records and open to examination by an entity at reasonable times without charge.
On request of a party in interest, the bankruptcy court shall, and on the bankruptcy court’s own motion, the bankruptcy may –
protect an entity with respect to a trade secret or confidential research, development, or commercial information;
11 U.S.C. § 107(a)-(b)(1).
11 U.S.C. § 107 codifies and displaces the common law right of access to judicial proceeds. See, e.g., In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417 (9th Cir. 2011). In In re Roman Catholic Archbishop of Portland in Oregon, the Ninth Circuit stated the following:
We perceive such a divergence between § 107 and the common law. The statute speaks directly to, and diverges from, the common law right of judicial access. First, the common law rule distinguishes between
11:00 AM
dispositive and non-dispositive motions, while § 107 covers all papers filed in a bankruptcy case. Second, the common law rule gives courts the discretion to create exceptions to the general rule of disclosure to the public. By contrast, § 107 has only three exceptions: "confidential business information," "scandalous or defamatory matter," and "means of identification." Third, the common law rule gives courts discretion to determine whether to protect or disclose documents, while § 107 eliminates a court’s discretion by making it mandatory for a court to protect documents falling into one of the enumerated exceptions.
Because § 107(b) imposes this mandatory requirement, it eliminates the balancing of public and private interests required by the common law rule if a document is scandalous or defamatory. Under § 107, the strength of the public’s interest in a particular judicial record is irrelevant; if the exception pertains, the bankruptcy court must issue a protective order on a motion by the affected person or party.
Because § 107 speaks directly to and conflicts with significant aspects of the common law right of access, we join our sister circuits in holding that
§ 107 preempts the common law right of access in bankruptcy proceedings.
Id. at 430-31 (citations omitted) (emphasis added).
As pointed out by the U.S. Trustee, on its face, Trustee’s request does not appear to satisfy any of the three exceptions. Additionally, Trustee’s motion contains no meaningful § 107 analysis. In any case, to the extent the settlement agreements can be categorized as "confidential business information," in light of the above excerpt, the Court simply must determine whether Trustee has demonstrated that 11 U.S.C. § 107(b)(1) is applicable to the settlement agreements. See, e.g., In re Borders Group, Inc., 462 B.R. 42, 46 (Bankr. S.D.N.Y. 2011) ("[T[he moving party bears the burden of showing that the information is confidential."). "The burden of proof is heavy, requiring an extraordinary circumstance or compelling need." In re Motors Liquidation Co., 561 B.R. 36, 42 (Bankr. S.D.N.Y. 2016) (quotation omitted).
Trustee’s arguments that the estate’s bargaining power will be prejudiced if parties in the pending adversary proceedings have access to the settlement
11:00 AM
agreements appear to fall short of satisfying the "heavy" burden of proof. See, e.g., In re Motors Liquidation Co., 561 B.R. 36 at 43 ("Evidence – not just argument – is required to support the extraordinary remedy of sealing.").
Trustee’s assertions are just arguments. No evidence was provided to satisfy the evidentiary burden imposed on the Trustee.
Moreover, that Trustee cites to 11 U.S.C. §105(a) in support of the Court’s authority to seal the settlement agreements, the general provisions of §105(a) do not provide authority to circumvent the specific mandates of §107(a). The Supreme Court in Law v. Siegel clearly articulates this principle:
A bankruptcy court has statutory authority to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of" the Bankruptcy Code. 11 U.S.C. § 105(a). And it may also possess "inherent power ... to sanction ‘abusive litigation practices.’" But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions.
It is hornbook law that § 105(a) "does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code." Section 105(a) confers authority to "carry out" the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits. That is simply an application of the axiom that a statute's general permission to take actions of a certain type must yield to a specific prohibition found elsewhere. We have long held that "whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of" the Bankruptcy Code.
571 U.S. 415, 420–21 (2014) (internal citations omitted) (quotations in original).
Accordingly, within the confines of § 107, the Court simply cannot find that Trustee’s arguments satisfied the heavy burden of proof required to justify the extraordinary measure of sealing court records.
11:00 AM
For the foregoing reasons, the Court is inclined to DENY the motion. APPEARANCES REQUIRED.
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
(Tele. appr. Michael Okayo, rep. Debtors, Timothy and Esmeralda Aitken) (Tele. appr. Larry Simons, rep. Trustee, Howard Grobstein)
Docket 72
2/3/2021
Service: Proper Opposition: None
On January 23, 2019, Timothy Mark and Esmeralda Aitken ("Debtors") filed a voluntary chapter 7 petition for relief. At the initial meeting of creditors on February 26, 2019, Debtors testified that they had sold the real property located at 6919 Elmwood Road, San Bernardino, CA ("Property") to their daughter Alicia Aitken ("Defendant"). On May 1, 2019, Debtors filed amended schedule A/B and C in which they claimed an exemption in the equity of the Property in the amount of $28,000 pursuant to CAL. CIV. P. CODE § 703.140(b)(1) ("Exemption").
On March 3, 2020, Trustee commenced an adversary proceeding title Howard B. Grobstein, Chapter 7 Trustee v. Alicia Aitken, in which Trustee sought to avoid the transfer of the Property pursuant to 11 U.S.C. § 548 and recover the Property under §
550. On January 5, 2021, the Court entered a judgment against Defendant in favor of Trustee, finding, inter alia, that Debtors had concealed the transfer from Trustee.
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Pending the resolution of the adversary, Trustee had filed two Section 4003 motions to extend the deadline to object to Debtors’ objections. The Court extended the deadline to object under February 3, 2021.
On January 7, 2021, within the deadline to object, Trustee filed the instant motion objecting to Debtors’ Exemption. Trustee argues that pursuant to 11 U.S.C. § 522(g), Debtors are precluded from claiming the Exemption in the Property.
11 U.S.C. § 522(g)(1) states:
(g) Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property that the trustee recovers under section 510(c)(2), 542, 543, 550, 551, or 553 of this title, to the extent that the debtor could have exempted such property under subsection (b) of this section if such property had not been transferred, if--
(1)(A) such transfer was not a voluntary transfer of such property by the debtor; and
the debtor did not conceal such property; or
11 U.S.C. § 522(g)(1)(A),(B)(emphasis added). Accordingly, a debtor is "not entitled to claim an exemption, where a debtor voluntarily transfers property in a manner that triggers the trustee's avoidance powers or the debtor knowingly conceals a prepetition transfer or an interest in property, and such property is returned to the estate as a result of the trustee's actions directed toward either the debtor or the transferee." In re Elliott, 523
B.R. 188, 197 (Bankr. App. 9th Cir. 2014) citing to Hitt v. Glass (In re Glass), 164
B.R. 759, 761 (9th Cir. BAP 1994), aff'd, 60 F.3d 565 (9th Cir.1995) (emphasis added) (internal quotations and alterations omitted).
Here, Trustee avoided the transfer and recovered the Property pursuant to § 550. The transfer was both voluntary and the litigation established that Debtors had concealed the Property from Trustee. Thus, Debtors meet both of the alternative requirements, and are therefore not entitled to the Exemption in the Property.
11:00 AM
The Court is inclined to GRANT Trustee’s motion and SUSTAIN the objection to the Exemption.
APPEARANCES REQUIRED.
Debtor(s):
Timothy Mark Aitken Represented By Michael Okayo
Joint Debtor(s):
Esmeralda Aitken Represented By Michael Okayo
Trustee(s):
Howard B Grobstein (TR) Represented By Larry D Simons
11:00 AM
EH
(Tele. appr. Vanmai Nguyen, rep. Debtor, Lana Lu)
Docket 45
2/3/2021
On August 19, 2020, Lana Lu ("Debtor") filed a Chapter 7 voluntary petition. Debtor listed her residence at 15418 American Way, Fontana, CA 92336. In Schedule A/B, Debtor listed an ownership interest in the real property located at 939 Brookvale Terrace, Ballwin, MO 63201 (the "Missouri property"). On Schedule C, Debtor claimed a California homestead exemption in the Missouri Property under CAL. CIV. P. CODE § 704.730 in the amount of $72,590.
At the first creditors meeting on September 22, 2020, Trustee questioned the Debtor’s entitlement to claim a California homestead exemption. In response, Debtor provided a declaration dated September 29, 2020, stating that Debtor was only temporarily staying in California for medical care and that she always intended to return to her home in Missouri. The meeting of creditors was continued until November 23, 2020.
On November 18, 2020, Trustee filed a motion objecting to the homestead exemption, arguing that per Debtor’s declaration she was domiciled in Missouri and thus ineligible for California exemptions. Debtor filed an opposition, attaching a second declaration, on December 2, 2020 arguing that she was domiciled in California because, inter alia, she had moved her accounts, cleaned out her Missouri home, and updated her license.
Trustee filed a reply adding that even if Debtor was domiciled in California, she would not be eligible to claim a California homestead exemption on the Missouri property.
11:00 AM
The hearing on Trustee’s motion was held on December 16, 2020 ("Hearing"). The Court found Debtor’s first declaration persuasive, noting on the record that nowhere in the second declaration did the Debtor explicitly state she intended to permanently reside in California, nor did she contradict her previous statement of intention. See Dkt. No. 24, Debtor’s Declaration.
The Court entered an Order on December 22, 2020 granting Trustee’s motion, sustaining Trustees objection and disallowing the California homestead exemption. Dkt. No. 40.
On January 4, 2021, Debtor filed the instant motion for reconsideration and relief from the Court’s order pursuant to FED. R. BANKR. P. Rule 9023 and 9024, arguing Court error. In support of the motion, Debtor provided a declaration.
On January 12, 2021, Trustee filed an opposition. Debtor filed a reply on January 26, 2021.
Debtor appears to style the motion as a request for both reconsideration and for relief from judgment. Debtor’s argument proceeds only under FED. R. CIV. P. Rule 60(b)(1) and (6) incorporated into bankruptcy proceedings by FED. R. BANKR. P. Rule 9024; thus, the Court will construe the motion as a request for relief from judgment.
In its December 22, 2020 order, which the Debtor seeks reconsideration of, the Court stated in relevant part that "The Debtor having found to be domiciled in Missouri as of the Petition Date is therefore ineligible to claim exemptions under California law in this case."
Dkt. No. 40, page 2.
As articulated on the record of the hearing, and discussed in greater detail below, the Debtor’s September 29, 2020 declaration, provided under penalty of perjury to the chapter 7 trustee, is unequivocal and uncontroverted that Debtor’s stay in California was temporary, and that it was always her intention to return to her permanent home in
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Missouri. See Dkt. No. 20, page 45. Of significance, in her later December 2, 2020 declaration filed in support of Debtor’s response to Trustee’s objection to claim, while Debtor testifies as to various specific facts pertaining to her current residence in California, at no point does she indicate that she considers California her permanent residence, or that she does not intend to return to Missouri. Based on this record, and as shown below in greater detail, the Court found persuasive the authority presented by the Trustee in his motion and reply that Debtor’s stated intent to return to Missouri, along with various supporting facts that she still files taxes in Missouri, retained her Missouri drivers’ license until just recently, etc., outweigh facts pertaining to Debtor’s current residence in California, and supports the Court’s finding that Debtor’s domicile is in Missouri.
Debtor relies on FED. R. CIV. P. Rule 60(b)(1) and (6), which allows for relief from an order based on "mistake, inadvertence, surprise, or excusable neglect," or "any other reason that justifies relief."
Debtor argues in its motion that: (1) it was a mistake for the Court to determine domicile based solely on the element of intention; (2) it was a mistake for the Court to not consider other objective facts and focus only on one single declaration in determining intention; (3) it was a mistake to not require the Trustee to provide authority to support his argument that the California homestead exemption does not apply to out of state property; and (4) it was not justifiable to not allow the Debtor an opportunity to clarity the discrepancies in her declarations so she can protect her home. The Court addresses each argument in turn.
Did the Court determine domicile based solely on the element of intent and not on other objective facts allegedly regarding domicile, and, if so, was that in error.
The Court notes the first two alleged "mistakes" are two sides of the same issue, and so combines them here. 11 U.S.C. § 522(b)(3)(A) provides that the state exemptions Debtor is eligible to claim are based on Debtor’s domicile:
Property listed in this paragraph is--
subject to subsections (o) and (p), any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law
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that is applicable on the date of the filing of the petition to the place in which the debtor's domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the
debtor's domicile has not been located in a single State for such 730-day period, the place in which the debtor's domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place;
11 U.S.C. § 522 (b)(3)(A) (emphasis added).
The meaning of the term "domicile" is governed by federal law. In re Donald, 328 B.R. 192, 200 (Bankr. App. 9th Cir. 2005). Generally, "domicile is one's permanent home, where one resides with the intention to remain or to which one intends to return and to which certain rights and duties are attached." In re Donald 328 B.R. at 202 (emphasis added) citing Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.); Kanter v. Warner–Lambert Co., 265 F.3d 853, 857 (9th Cir.2001). "One may reside in one place and be domiciled in another." In re Donald, 328 B.R. at 202 citing Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
"When a person’s domicile is in doubt, the difficult question is usually whether the individual has the requisite subjective intent." In re Donald, 328 B.R. at 203 (emphasis added). "This enquiry is essentially factual in a sense that requires consideration of all the circumstances." "One's own declarations regarding intent are pertinent but ordinarily will be substantially discounted by the court when inconsistent with objective facts." Id. Therefore, where there is a dispute as to one’s domicile, establishing "domicile" turns on whether there is intent to return based on a consideration of the circumstances.
In In Re Donald, a debtor claimed she was domiciled in California based on thirty days that she had resided there for a contract position. Id. In deciding whether the debtor was domiciled in California, the bankruptcy court considered debtor’s declaration as the "sole evidence" that she never intended to relinquish her California domicile versus objective evidence that Georgia was her domicile. Id. The court determined Georgia was her domicile because the objective facts that debtor owned a home in Georgia, that she remained there after her spouse died, that she filed bankruptcy for the purposes of saving her Georgia house, supported a "contrary inference." Id. In reviewing the bankruptcy court’s decision, the Bankruptcy Appellate Panel stated:
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While the court could have chosen to believe the debtor's testimony that she had not relinquished her California domicile in the face of other objective evidence suggesting a Georgia domicile, it gave greater weight to the objective evidence. Either conclusion was a permissible view of the evidence.
Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous.
Id.
Here, Debtor was physically residing in California during the 730-day operative period. However, there was a dispute as to whether California was Debtor’s permanent home, not just her temporary residence. Therefore, the Court’s decision turned on her intent. See, e.g., In re Donald, 328 B.R. at 202.
In reviewing both of Debtor’s declarations in the record, other than as to Debtor’s intent, there was evidence arguably supporting domicile in both California and Missouri.
Having weighed this evidence, the Court found the first declaration ultimately determinative on this issue because Debtor clearly articulated her intent to return to Missouri after receiving medical treatment, which was not contradicted in her second declaration. The Court considered but did not find that certain facts related to residency, including that Debtor changed her mailing address, updated her license, and transferred important documents and accounts, were inconsistent with Debtor’s clear and unambiguous stated intent to return to Missouri after treatment, or that they outweighed Debtor’s stated intent, especially given other objective evidence in Debtor’s September 29, 2020 declaration supporting domicile in Missouri. In other words, the objective evidence of domicile was somewhat of a "wash" as between the two states, and the uncontroverted evidence of Debtor’s intent tipped the scales. To the extent there is another permissible view of the evidence, the Court does not believe its choice can be seen as "clearly erroneous." See id.
Was it a mistake to not require the Trustee to provide authority to support his argument that the California homestead exemption does not apply to out-of-state property.
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As the Court found Debtor to be domiciled in Missouri, the Court did not need to reach a determination on whether the Missouri property qualified as a homestead under the relevant California exemption law, CAL. CIV. P. CODE § 704.730, because California exemption law was no longer available to Debtor under 11 U.S.C. § 522(b)(3)(A). As an aside, Debtor’s citation to In re Arrol, 170 F.3d 934, 935 (9th Cir. 1999) is inapplicable to the issue of domicile under § 522 in this case, as there was no analysis of the domicile/residence distinction in the Arrol decision, which also involved a prior version of § 522.
Was it an error to not allow the Debtor an opportunity to clarity the discrepancies in her declarations.
The Debtor’s September 29, 2020, declaration attached as part of Dkt. No. 20, pages 43-46 (page 44 appears to be unintentionally blank), is extremely clear and unambiguous as to Debtor’s intent. It states in relevant part:
"I had never planned or intended to permanently stay at my sister’s house or in CA. I always miss my house in MO and want to go home. I still file tax in MO and I still keep my MO driver license. I still have my furniture and personal belongings at my house in MO. Although I was and still am in constant pain and numbness and unable to sit for too long on the plane, I missed my house and I traveled long flights back to my house at least twice a year so I could check on my house and make sure it was well-maintained. I believe that I can claim CA homestead exemption on my MO house because I came back to CA only for one sole purpose is to find a doctor or someone to treat my damaged nerves. I never intended to live in CA permanently. I always intended to move back to MO once my treatments are done. Therefore, my MO is always my primary residence."
Dkt. No. 20, page 45 (grammatical errors in original, emphasis added).
The Court notes that the date of this declaration, September 29, 2020, is very close in time - a little more than one month after she filed bankruptcy. Approximately two months later, in declaration dated December 2, 2020, in support of Debtor’s response to Trustee’s objection to exemption, the Debtor testifies as to general facts regarding her move to California in 2017 to live with her sister while she seeks better and different medical care. It is manifestly clear from reading Debtor’s response and her December 2,
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2020 declaration, compared to her September 29, 2020 declaration, that Debtor is attempting to paint a different picture of her situation in order to defend her claim of exemptions under California law.
However, critically, nothing in her December 2, 2020 declaration challenges, contests, changes or otherwise conflicts with the testimony in her September 29, 2020 declaration as to (1) Debtor’s stated intent to return to Missouri or (2) her belief that Missouri is her primary residence (an even lower standard than domicile). Therefore, there is no factual conflict between the two declarations. As such, having reviewed both and pursuant to applicable caselaw provided above and in the Trustee’s moving papers, the Court focused on intent as the most determinative factor and found that the Debtor’s domicile for purposes of § 522 was in Missouri as of the petition date.
In this case Debtor was made aware that her September 29, 2020 declaration was at issue when the Trustee attached it to his objection filed on November 18, 2020, as Dkt. No. 20. Pursuant to Local Bankruptcy Rule 9013-1(f)(2), Debtor was required to file evidence in support of her response, and in fact did file such declaration on December 2, 2020. As noted above, this latter declaration did not create a conflict for which an evidentiary hearing would be appropriate, and on that basis the Court declined to set an evidentiary hearing.
Some light is shown by Debtor’s new January 4, 2021, declaration, attached to her motion for reconsideration, in which she now states, in essence, that after moving to California and being close to her sister she has decided to make California her new home. Importantly, this declaration is not part of the evidentiary record of the matter for which reconsideration is sought and does not present any "newly discovered" evidence. While the Court is generally disinclined to speculate, it seems likely to the Court, having reviewed all the pleadings, that Debtor’s September 29, 2020 declaration was made as part of a specific legal strategy related to her claim of exemption. Whether it was the truth or not, it is the testimony that Debtor presented under penalty of perjury. Debtor now seems to understand that her strategy was wrong and that that September 29, 2020 testimony legally undermines her claim to an exemption under California law, and she appears to be walking a fine line in her December 2, 2020 declaration in an attempt to alter the facts in support of her legal strategy while not perjuring herself (or from being otherwise judicially estopped). The Court does not condone manipulation of fact as attempted by Debtor here. Perhaps she was initially given incorrect legal advice. But in any event, the evidentiary record ruled on by the Court as part of the Trustee’s objection
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to exemption is consistent, and the Court’s finding was made in accordance with the authority referenced above and in the Trustee’s papers after consideration of all evidence presented. Moreover, the Debtor has presented no authority whatsoever in her motion to reconsider supporting her request for an evidentiary hearing. On these facts, the Court finds no basis to reconsider its denial of Debtor’s request for an evidentiary hearing.
For the reasons stated above and in the Trustee’s response to the motion to reconsider, the Court is inclined to DENY the motion to reconsider and for relief from judgment.
APPEARANCES REQUIRED.
Debtor(s):
Lana Lu Represented By
Vanmai H Nguyen
Movant(s):
Lana Lu Represented By
Vanmai H Nguyen Vanmai H Nguyen
Trustee(s):
Larry D Simons (TR) Represented By Frank X Ruggier Larry D Simons
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EH
(Tele. appr. Brandon Iskander, rep. Trustee, Todd Frealy)
Docket 13
2/3/2021
Service: Proper Opposition: None
On November 4, 2020, Anna M. Gonzales ("Debtor") filed a voluntary chapter 7 petition for relief. On schedule A/B of her petition, Debtor listed a 50% interest in real property located at 9805 Main Street, Rancho Cucamonga, CA 91730 ("Property") at a value of $298,000. Debtor claimed a homestead exemption in the amount of $110,000 pursuant to CAL. CIV. P. CODE § 704.730.
On January 6, 2021, Trustee filed the instant motion objection to Debtor’s homestead exemption, but only to the extent it exceeds $100,000. Per Trustee’s proposed broker, the Trustee believes the actual value of the Property is $475,000. Trustee argues that as Debtor is 56 years old and not disabled, she does not qualify for an enhanced exemption. Therefore, pursuant to CAL. CIV. P. CODE § 704.730(a)(2), Debtor is only entitled to a
$100,000 exemption, assuming she meets the definition of a "family unit" under CAL. CIV. CODE § 704.710(b)(2)(D).
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FED. R. BANKR. P. RULE 4001(b)(1) states, in part:
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 list or supplemental schedules is filed, whichever is later.
Here, Trustee filed the motion on January 6, 2021, which is within the 30-day period from the 341(a) meeting held on December 8, 2020.
CAL. CIV. P. CODE § 704.730, provides in relevant part:
The amount of the homestead exemption is one of the following:
Seventy-five thousand dollars ($75,000) unless the judgment debtor or spouse of the judgment debtor who resides in the homestead is a person described in paragraph (2) or (3).
One hundred thousand dollars ($100,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor.
CAL. CIV. P. CODE § 704.730(a) (1),(2) (emphasis added). Pursuant to CAL. CIV. CODE § 704.710(b)(2)(D), "an unmarried relative described in this paragraph who has attained the age of majority and is unable to take care of or support himself or herself," is included as a member who satisfies the family unit requirement.
Here, Debtor asserts the family unit homestead exemption pursuant to CAL. CIV. P. CODE
§ 704.730(a)(2) because she shares the Property with her 19-year-old son who is unemployed and is thus presumably dependent. On these facts, Trustee is not now objecting to whether the son meets the family unit definition. Accordingly, Debtor is entitled to a homestead exemption of up to $100,000, not $110,000, as Debtor does not
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appear to qualify for any exemption enhancements.
Moreover, pursuant to Local Rule 9013-1(h), the Court may and does deem the failure to oppose the motion as consent to the requested relief.
The Court also notes that Trustee would like to reserve the right to object to the homestead exemption to the extent Trustee discovers that the son does not meet the family unit definition "at a later date."
The Court is inclined to GRANT Trustee’s motion and SUSTAIN the objection to the homestead exemption to the extent it exceeds $100,000. To the extent Trustee requests to further object to the homestead exemption until some indefinite date, the Court DENYS Trustee’s request to the extent such further exemption is asserted after the deadline set by FED. R. BANKR. P. RULE 4001(b)(1).
APPEARANCES REQUIRED.
Debtor(s):
Anna M Gonzales Pro Se
Movant(s):
Todd A. Frealy (TR) Represented By Brandon J Iskander
Trustee(s):
Todd A. Frealy (TR) Represented By Brandon J Iskander
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HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20,11/4/20,12/2/20,1/6/21
Also #10 EH
(Tele. appr. Douglas Plazak, rep. Plaintiff, Robert Whitmore) (Tele. appr. Robert Whitmore, chapter 7 trustee)
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.
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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 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
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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:
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
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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." 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.
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Id. at 149.
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.
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In re Davis, 323 B.R. 732, 741 (B.A.P. 9th Cir. 2005) (Judge Klein, concurring opinion).
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.").
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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 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:
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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.").
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
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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.
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
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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 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.
2:00 PM
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 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
HOLDING DATE
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20,11/4/20, 2/2/20,1/6/21
Also #9 EH
(Tele. appr. Douglas Plazak, rep. Plaintiff, Robert Whitmore)
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");
2:00 PM
and (2) an adversary complaint against Kenneth Hammond seeking 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.
The Court is inclined to CONTINUE the matter for Trustee to file an objection to
2:00 PM
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
Adv#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20, 11/4/20, 12/2/20,1/6/21
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
Adv#: 6:18-01210 Kim v. Yoon et al
Also #13 EH
(Tele. appr. Jiyoon Kim, rep. Defendant Joshua Park)
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
2:00 PM
Vivian Kim Represented By
Jiyoung Kym
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
Also #12
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 9/15/20,10/18/20
EH
(Tele. appr. Jiyoon Kim, rep. Defendant Joshua Park)
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#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
Also #14 & 15 EH
(Tele. appr. Daren Schlecter, rep. Plantiff, Canyon Springs Enterprises dba RSH Construction Services)
(Tele. Todd Turoci, rep. Defendant, Marc Anthony Capoccia)
Docket 27
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Movant(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
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#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
status conference Also #14 & 16
EH
(Tele. appr. Daren Schlecter, rep. Plantiff, Canyon Springs Enterprises dba RSH Construction Services)
(Tele. Todd Turoci, rep. Defendant, Marc Anthony Capoccia)
Docket 0
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
From: 3/25/20, 4/1/20,12/2/20 Also #14 & 15
(Tele. appr. Daren Schlecter, rep. Plantiff, Canyon Springs Enterprises dba RSH Construction Services)
(Tele. Todd Turoci, rep. Defendant, Marc Anthony Capoccia)
EH
Docket 1
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
2:00 PM
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#: 6:20-01006 Eggleston et al v. Ramirez
Also #18 EH
(Tele. appr. Tyler Brown, rep. Plaintiff, Eggleston et al)
(Tele. appr. Scott Talkov, rep. Defendant, Corinne Lara Ramirez)
Docket 72
2/3/2021
Service Proper Opposition Filed
On October 24, 2019, Corinne Lara Ramirez ("Defendant") filed a Chapter 7 voluntary petition. On October 5, 2020 the order of discharge was entered closing the bankruptcy case on October 6, 2020.
While the bankruptcy was still proceeding, on January 22, 2020, David Eggleston, Karin Doerr, Richard Alvarado, and Yan Sum Alvarado ("Plaintiffs") filed a non- dischargeability complaint ("Complaint") against Defendant pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6). On October 2, 2020, Plaintiffs filed a motion for leave to amend. The hearing was held on November 18, 2020, in which the Court orally granted the Plaintiff’s request. On December 1, 2020, Plaintiffs filed the first amended complaint ("FAC").
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On December 3, 2020, the Court entered an order granting Defendant’s motion to dismiss as to the § 523(a)(6) second cause of action and denying Defendant’s motion as to the § 523(a)(2)(A) first cause of action. The Plaintiff was granted leave to amend the first cause of action, and the FAC become the governing complaint. Defendant were given a deadline to respond by December 23, 2020
On December 23, 2020, Defendant filed the instant motion to dismiss arguing the allegations in the FAC do not meet the heighted pleading requirement of FED. R. CIV. P. Rule 9(b). On January 13, 2021, Plaintiffs filed an opposition. Plaintiffs contend that the factual allegations meet the elements required by § 523(a)(2)(A).
MOTION TO DISMISS STANDARD
FED. R. CIV. P. Rule 12(b)(6), made applicable in adversary proceedings through FED. R. BANKR. P. Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a FED. R. CIV. P. Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The trial court need not, however, accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under FED. R. CIV. P. Rule 12(b)(6), a plaintiff must aver in the complaint "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under FED. R. CIV. P. Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
NON-DISCHARGEABILITY STANDARD
11 U.S.C. § 523(a)(2)(A) states:
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A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
The elements of a § 523(a)(2)(A) claim are well-established: (a) the debtor made representations; (b) which were known to be false; (c) the representations were made with the intention and purpose of deceiving the creditor; (d) the creditor relied on such representations; (e) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
RULE 9(B) STANDARD
Plaintiff appears to cite to In re Druckemiller, 177 B.R. 859 (Bankr. N.D. Ohio 1994) for the proposition that so long as the allegations align with the elements of the § 523(a) (2)(A), FED. R. CIV. P. Rule 9(b) does not apply to § 523(a)(2)(A). This is incorrect. The Druckemiller court never considered the application of FED. R. CIV. P. Rule 9(b) and the issue there was whether a debt was dischargeable, not whether a complaint for dischargeability was particularly pled. See Druckemiller, 177 B.R. at 859-62.
As Defendants argue, FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)(A) non- dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008).
FED. R. CIV. P. Rule 9(b) states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally."
"In order to properly plead fraud with particularity, the complaint must allege the time, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." In re Kimmel, 2008 WL 5076380 at *1. The heightened pleading standard is commonly cited as requiring the allegations to identify "the who, what, when, where, and how of the misconduct charged." See, e.g. U.S. v.
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United Healthcare Ins. Co., 848 F.3d 1161, 1167 (9th Cir. 2016); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010); Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
ANALYSIS
Plaintiff’s FAC contains four different groups of representations:
Defendant Corinne Lara Ramirez made the follow material misrepresentations of fact (1) that the Defendant Corinne Lara Ramirez and her business partners were knowledgeable and experience in the wine business, including the production, marketing, accounting, and distribution of wine, all of which would be undertaken by The Company; (FAC ¶ 3).
(2) that The Company already had assets, including wine in three tanks, which wine was represented by Defendant Corrina[sic] Lara Ramirez and her business partners to be worth at least $300,000.00. (FAC ¶ 3).
Following this investment, Defendant Corinne Lara Ramirez represented that The Company was in good financial condition and profitable. When Plaintiffs Richard Alvarado and Yan Sum Alvarado asked to see The Company’s financial statements, Defendant Corinne Lara Ramirez represented that there were not ready, but would be provided later. (FAC ¶ 5).
Plaintiffs David Eggleston and Karin Doerr purchased a combined five membership interest for $100,000 based on the statements made by Defendant Corinne Lara Ramirez about the Company’s financial condition….they were told that these loans would be immediately repaid. (FAC ¶ 6).
All these representations lack the detail to satisfy FED. R. CIV. P. Rule 9(b)’s particularity requirement. Beyond these allegations, no information regarding the circumstances of these statements is provided in the FAC. With respect to the first group, to whom, specifically, did Defendant make those statements and in what context were they made; were they made via phone call, were they made at a business meeting? Exactly when were they made? The Court has the same issue with the second group of representations. With respect to the third and fourth groups, it is unclear when Plaintiff made their investments and at what point Defendant made representations that the company was in good financial condition, or when and how they were told that their loans would be immediately repaid.
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The FAC is also disorganized and vague as to how the one date included in the FAC relates to the alleged misrepresentations. Although paragraph 2 of the FAC provides that on July 21, 2015 Defendant solicited the Plaintiffs to invest, it is difficult to determine whether that was the date of all the representations, and in any case the FAC lacks the dates for the alleged subsequent misrepresentations. This is just another example of how the FAC fails to show with "particularity the circumstances constituting fraud or mistake." See FED. R. CIV. P. Rule 9(b)
As Plaintiff has generally not pleaded the "who, what, when, where, and how of the misconduct charged," the Court cannot find that there is enough specificity for Defendant to "prepare an adequate response to the allegations." See In re Kimmel, 2008 WL 5076380 at *1.
For the foregoing reasons, the Court is inclined to GRANT the motion with leave to amend.
APPEARANCES REQUIRED.
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
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
Also #17
From 10/7/20, 10/14/20,11/18/20 EH
(Tele. appr. Tyler Brown, rep. Plaintiff, Eggleston et al)
(Tele. appr. Scott Talkov, rep. Defendant, Corinne Lara Ramirez)
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
2:00 PM
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#: 6:20-01032 Whitmore v. Tsirtsis et al
*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, 10/18/20
EH
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 Brad A Mokri
Christos Minoudis Represented By Brad A Mokri
2:00 PM
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#: 6:20-01192 Price v. Salem et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Amjad Yousef Salem Represented By Brian J Soo-Hoo
Defendant(s):
Amjad Yousef Salem Pro Se
Lina Amjad Salem Pro Se
Joint Debtor(s):
Lina Amjad Salem Represented By Brian J Soo-Hoo
Plaintiff(s):
David Price Represented By
David Weil
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01185 Anderson v. Oceana Gwen, LLC et al
EH
(Tele. appr. Tinho Mang, rep. Trustee, Karl Anderson)
Docket 1
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Defendant(s):
Oceana Gwen, LLC Pro Se
EMMANUEL ANDRADE Pro Se
Plaintiff(s):
Karl T. Anderson Represented By Tinho Mang
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Jenny Doling, rep. Debtor, Milorad & Sonja Mileusnic) (Tele. appr. John Ellis, rep. creditor USA, IRS)
Docket 108
- 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
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 72
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Summer Shaw, rep. Debtors, Evan & Elton Parker-Calderon)
Docket 48
- 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
11:00 AM
Docket 27
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Francisco Ralph Prado Represented By Carey C Pickford
Joint Debtor(s):
Martha Prado Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Karisma Brieon Crain Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Terrence Fantauzzi rep. Debtor, Kent Moore) (Tele. appr. Nancy Lee, rep. creditor, PNC Bank)
Docket 18
The Court, having reviewed the motion, notice appearing proper, good cause appearing, and the affected lienholder having filed a conditional non-opposition to the motion, the Court is inclined to GRANT the motion, avoiding the junior lien of PNC Bank, National Association, 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):
Kent D. Moore 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. Terrence Fantauzzi rep. Debtor, Kent Moore) (Tele. appr. Nancy Lee, rep. creditor, PNC Bank)
Docket 0
- NONE LISTED -
Debtor(s):
Kent D. Moore 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. Keith Nguyen, rep. Debtor, Theresa Salaz)
Docket 0
- NONE LISTED -
Debtor(s):
Theresa P. Salaz Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Austin Nagel, rep. creditor, The Bank of New York Mellon)
Docket 0
- NONE LISTED -
Debtor(s):
Gregory Johnson Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Juan Manuel Sanchez Tejeda Represented By Raymond Perez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Robert Chen, rep. Debtor, Lee Ann Bradshaw)
Docket 0
- NONE LISTED -
Debtor(s):
Lee Ann Bradshaw Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 72
- NONE LISTED -
Debtor(s):
Jose Ignacio Vega Represented By Todd L Turoci
Joint Debtor(s):
Rosalba Ruiz Quinonez Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Yelena Gurevich, rep. Debtor, Elizabeth Molinari)
Docket 57
- NONE LISTED -
Debtor(s):
Elizabeth M Molinari Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 211
- NONE LISTED -
Debtor(s):
Bruce Howard Ruggles Represented By John F Brady
Joint Debtor(s):
Ann Marie Ruggles Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 85
- NONE LISTED -
Debtor(s):
Veronica A Mendoza Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 93
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Jennifer Tanios, rep. Debtors, Jaime & Jennifer Villalobos)
Docket 124
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Andy Warshaw, rep. Debtors, Alfredo Manzo Arrieta and Mayte Hernandez-Arrieta)
Docket 158
- 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 51
- NONE LISTED -
Debtor(s):
Adrian Lopez Represented By Rebecca Tomilowitz
Joint Debtor(s):
Patricia Lopez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 71
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Donna Travis, rep. Debtor, Yolanda Williams)
Docket 100
- NONE LISTED -
Debtor(s):
Yolanda Williams Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Joselina Medrano, rep. Debtor, Frank Moore)
Docket 59
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Kristin Lamar, rep. Debtors, Anthony and Lena Ramos)
Docket 47
- 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 32
- NONE LISTED -
Debtor(s):
Iris M Gonzalez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Kevin Tang, rep. Debtors, Edwin Briones and Gabriela Sandez)
Docket 67
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Stephen Smyth, rep. Debtor, Nicholas Asamoa)
Docket 39
- NONE LISTED -
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 31
- 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
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
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, Christian Howard)
Docket 42
- NONE LISTED -
Debtor(s):
Christian Howard Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 165
- NONE LISTED -
Debtor(s):
Zachary Lee Nowak Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Margarita Barham Represented By Christopher Hewitt Lazaro E Fernandez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK, N.A.
EH
(Tele. appr. Wendy Locke, rep. creditor, JPMorgan Chase Bank)
Docket 41
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 relief from 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):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
11:00 AM
Laura Pinedo Represented By
James G. Beirne
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
EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
Docket 39
Movant to apprise Court of status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Michael Lewis Jackson Represented By Anthony B Vigil
Joint Debtor(s):
Samantha Kim Jackson Represented By Anthony B Vigil
Movant(s):
Freedom Mortgage Corporation Represented By John D Schlotter
11:00 AM
Trustee(s):
Dane W Exnowski
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Robert Chen, rep. Debtors, Dana Pettus and Andrea Doster) (Tele. appr. Sheryl Ith, rep. creditor, GM Financial)
Docket 43
When considering a motion for relief from the automatic stay to pursue a non- bankruptcy action, the Court considers the Curtis factors:
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
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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 ready for trial.
Id. at 845 (quotations and citations omitted). As is typically the case, "[t]he
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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 no proceeding has of yet been commenced, the remainder of the factors weigh in favor of relief from stay being granted because Movant "seeks recovery primarily from third parties and agrees that the stay will remain in effect as to the enforcement of any resulting judgment against the Debtor." Because Movant is not seeking to recover from Debtors or the bankruptcy estate, granting relief from stay 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)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request under ¶¶ 2 and 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):
Dana Edward Pettus Represented By
Raj T Wadhwani
Joint Debtor(s):
Andrea Lynn Doster Represented By
Raj T Wadhwani
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CARVANA, LLC
EH
(Tele. appr. Merdaud Jafarnia, rep. creditor, Carvana, LLC)
Docket 17
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, Debtors’ timely-filed statement of intention does not address the subject collateral. As the deadline for filing or amending the statement of intention passed pursuant to 11 U.S.C. § 521(a)(2) (A) prior to the filing of the late statement of intention, the automatic stay terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Jon Wesley Mcdowell Pro Se
Joint Debtor(s):
Lisa Ann Mcdowell Pro Se
Movant(s):
Carvana, LLC Represented By
Erica T Loftis Pacheco
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: MECHANICS BANK
EH
(Tele. appr. Vincent Frounjian, rep. creditor, Mechanics Bank)
Docket 23
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
APPEARANCES WAIVED. 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 Lopez Represented By
Stephen K Moran
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, GM Financial)
Docket 9
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 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):
Rosa Gonzalez Olivera Represented By Christopher Hewitt
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
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Trustee(s):
Sheryl K Ith
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: W-WORLD USA, LLC
From: 2/2/21
CASE DISMISSED ON 1/25/21
EH
(Tele. appr. creditor, W-World USA)
Docket 9
Judge Houle’s self-calendaring procedures provide that: "Telephonic notice of the date, time and place of the hearing on the motion must be given to all parties entitled to receive notice not later than 5 court days prior to the hearing, and proof of service of such telephonic notice must be filed not later than 3 court days prior to the hearing." Local Rule 4001-1(c)(1)(A) provides that: "If the motion seeks relief from the stay to proceed with an unlawful detainer action involving a residential property with a month-to-month tenancy, tenancy at will, or a tenancy terminated by an unlawful detainer judgment, the movant must serve only the debtor and debtor’s attorneys." Here, Movant not having provided telephonic notice to Debtor, notice is improper. Therefore, the Court is inclined to DENY the motion without prejudice.
APPEARANCES REQUIRED.
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Debtor(s):
Lucy Arzate Represented By
Thinh V Doan
Movant(s):
W-WORLD USA, LLC Represented By Julian K Bach
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20
EH
Docket 464
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 57
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Counsel have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 3,250 Trustee Expenses: $ 149.21
Counsel Fees: $10,000 Counsel Expenses: $585.80
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):
Maria Fabiola Marroquin Represented By Mark A Mellor
Trustee(s):
Karl T Anderson (TR) Represented By
11:00 AM
Robert P Goe Thomas J Eastmond
Rafael R Garcia-Salgado
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, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 875.00 Trustee Expenses: $ 206.45
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):
Joseph Ramirez Represented By Richard L Barrett
Joint Debtor(s):
Adriana Ramirez Represented By Richard L Barrett
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:20-01081 Pringle v. Labib et al
EH
Docket 10
At the conclusion of the hearing on January 27, 2021, the remaining issue focused on the respective burdens of Plaintiff and Defendant regarding Defendant’s affirmative defense of good faith. Again, Cal. Civ. Code Section 3439.08(a) provides that "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige." In the Makar action, the evidence presented by Defendant in support of the good faith affirmative defense states in its entirety as follows:
"I never knew nor had any reason to believe that Bastorous, his wife or any of his entities were involved in fraudulent activities until after he filed for bankruptcy. I would never have invested money with him has I known he was intending to steal my investment."
Plaintiff directs the Court to Nautilus , Inc., v. Chao Chen Yang et al., 217 Cal. Rptr. 3d 458, 461 (Cal. Ct. App. 2017), for the proposition that Defendant’s burden required him, at a minimum, to provide testimony refuting that Defendant: (1) had fraudulent intent; (2) colluded with a person who was engaged in the fraudulent conveyance; (3) actively participated in the fraudulent conveyance; or (4) had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent. In other words, Plaintiff asserts that Defendant’s declaration fails because it does not address
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each of the specific elements set forth in Nautilus. In Nautilus, however, the Court did not address the defendant’s evidentiary burden in moving for summary judgement as to good faith, nor is Nautilus binding on the issue.
As discussed above, the standard for summary judgment is that the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Thus, Defendant has the burden to establish the defense of good faith. The question remains: Is the Defendant’s testimony sufficient to meet their burden on summary judgment, or did Defendant have to specifically recite and refute each of the Nautilus elements? In this case, the Court is inclined to find the Nautilus analysis thoughtful as to the elements a defendant would need to prove to establish a finding of good faith. That does not mean, however, that the Defendant had to refute those elements verbatim as part of its burden of production on summary judgment, nor does Plaintiff present any authority to that effect. Here Defendant’s testimony establishes that he did not know about the fraudulent activity, nor did he have reason to believe there was fraudulent activity, and that if he was aware of Bastorous’ intent he would not have invested. Given that factual presentation, with the understanding that the Plaintiff has not presented any evidence to establish a material fact as to any of the disjunctive Nautilus good faith tests, the Court cannot find that there remains any question of fact as to Defendant’s good faith. In other words, it appears to the Court that the Nautilus tests for good faith are subsumed within, and satisfied by, Defendant’s
testimony. Therefore, reviewing that evidence in light of Nautilus, the Court finds
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that Makar’s testimony satisfies the Nautilus court’s required showing. As such, the Court is inclined to adopt the prior tentative ruling in its entirety and GRANT summary judgment in favor of Defendant Makar, otherwise DENYING summary judgment as to the remaining Defendants.
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from
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Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
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In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
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Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
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Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
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In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For
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that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
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In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
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In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue,
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the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01076 Pringle v. John 20/20 Enterprises, Inc. et al
From: 1/6/21,1/27/21 EH
Docket 22
At the conclusion of the hearing on January 27, 2021, the remaining issue focused on the respective burdens of Plaintiff and Defendant regarding Defendant’s affirmative defense of good faith. Again, Cal. Civ. Code Section 3439.08(a) provides that "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige." In the Makar action, the evidence presented by Defendant in support of the good faith affirmative defense states in its entirety as follows:
"I never knew nor had any reason to believe that Bastorous, his wife or any of his entities were involved in fraudulent activities until after he filed for bankruptcy. I would never have invested money with him has I known he was intending to steal my investment."
Plaintiff directs the Court to Nautilus , Inc., v. Chao Chen Yang et al., 217 Cal. Rptr. 3d 458, 461 (Cal. Ct. App. 2017), for the proposition that Defendant’s burden required him, at a minimum, to provide testimony refuting that Defendant: (1) had fraudulent intent; (2) colluded with a person who was engaged in the fraudulent conveyance; (3) actively participated in the fraudulent conveyance; or (4) had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent. In other
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words, Plaintiff asserts that Defendant’s declaration fails because it does not address each of the specific elements set forth in Nautilus. In Nautilus, however, the Court did not address the defendant’s evidentiary burden in moving for summary judgement as to good faith, nor is Nautilus binding on the issue.
As discussed above, the standard for summary judgment is that the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Thus, Defendant has the burden to establish the defense of good faith. The question remains: Is the Defendant’s testimony sufficient to meet their burden on summary judgment, or did Defendant have to specifically recite and refute each of the Nautilus elements? In this case, the Court is inclined to find the Nautilus analysis thoughtful as to the elements a defendant would need to prove to establish a finding of good faith. That does not mean, however, that the Defendant had to refute those elements verbatim as part of its burden of production on summary judgment, nor does Plaintiff present any authority to that effect. Here Defendant’s testimony establishes that he did not know about the fraudulent activity, nor did he have reason to believe there was fraudulent activity, and that if he was aware of Bastorous’ intent he would not have invested. Given that factual presentation, with the understanding that the Plaintiff has not presented any evidence to establish a material fact as to any of the disjunctive Nautilus good faith tests, the Court cannot find that there remains any question of fact as to Defendant’s good faith. In other words, it appears to the Court that the Nautilus tests for good faith are subsumed within, and satisfied by, Defendant’s
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testimony. Therefore, reviewing that evidence in light of Nautilus, the Court finds that Makar’s testimony satisfies the Nautilus court’s required showing. As such, the Court is inclined to adopt the prior tentative ruling in its entirety and GRANT summary judgment in favor of Defendant Makar, otherwise DENYING summary judgment as to the remaining Defendants.
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
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The defendants in the Actions are investors who received prepetition payment from Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
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In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
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Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
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Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
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In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For
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that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
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In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
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In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue,
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the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01057 Pringle v. Makar
EH
Docket 12
At the conclusion of the hearing on January 27, 2021, the remaining issue focused on the respective burdens of Plaintiff and Defendant regarding Defendant’s affirmative defense of good faith. Again, Cal. Civ. Code Section 3439.08(a) provides that "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige." In the Makar action, the evidence presented by Defendant in support of the good faith affirmative defense states in its entirety as follows:
"I never knew nor had any reason to believe that Bastorous, his wife or any of his entities were involved in fraudulent activities until after he filed for bankruptcy. I would never have invested money with him has I known he was intending to steal my investment."
Plaintiff directs the Court to Nautilus , Inc., v. Chao Chen Yang et al., 217 Cal. Rptr. 3d 458, 461 (Cal. Ct. App. 2017), for the proposition that Defendant’s burden required him, at a minimum, to provide testimony refuting that Defendant: (1) had fraudulent intent; (2) colluded with a person who was engaged in the fraudulent conveyance; (3) actively participated in the fraudulent conveyance; or (4) had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent. In other words, Plaintiff asserts that Defendant’s declaration fails because it does not address
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each of the specific elements set forth in Nautilus. In Nautilus, however, the Court did not address the defendant’s evidentiary burden in moving for summary judgement as to good faith, nor is Nautilus binding on the issue.
As discussed above, the standard for summary judgment is that the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Thus, Defendant has the burden to establish the defense of good faith. The question remains: Is the Defendant’s testimony sufficient to meet their burden on summary judgment, or did Defendant have to specifically recite and refute each of the Nautilus elements? In this case, the Court is inclined to find the Nautilus analysis thoughtful as to the elements a defendant would need to prove to establish a finding of good faith. That does not mean, however, that the Defendant had to refute those elements verbatim as part of its burden of production on summary judgment, nor does Plaintiff present any authority to that effect. Here Defendant’s testimony establishes that he did not know about the fraudulent activity, nor did he have reason to believe there was fraudulent activity, and that if he was aware of Bastorous’ intent he would not have invested. Given that factual presentation, with the understanding that the Plaintiff has not presented any evidence to establish a material fact as to any of the disjunctive Nautilus good faith tests, the Court cannot find that there remains any question of fact as to Defendant’s good faith. In other words, it appears to the Court that the Nautilus tests for good faith are subsumed within, and satisfied by, Defendant’s
testimony. Therefore, reviewing that evidence in light of Nautilus, the Court finds
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that Makar’s testimony satisfies the Nautilus court’s required showing. As such, the Court is inclined to adopt the prior tentative ruling in its entirety and GRANT summary judgment in favor of Defendant Makar, otherwise DENYING summary judgment as to the remaining Defendants.
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from
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Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
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In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
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Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
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Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
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In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For
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that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
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In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
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In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue,
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the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01053 Pringle v. Bebawy et al
EH
Docket 10
At the conclusion of the hearing on January 27, 2021, the remaining issue focused on the respective burdens of Plaintiff and Defendant regarding Defendant’s affirmative defense of good faith. Again, Cal. Civ. Code Section 3439.08(a) provides that "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige." In the Makar action, the evidence presented by Defendant in support of the good faith affirmative defense states in its entirety as follows:
"I never knew nor had any reason to believe that Bastorous, his wife or any of his entities were involved in fraudulent activities until after he filed for bankruptcy. I would never have invested money with him has I known he was intending to steal my investment."
Plaintiff directs the Court to Nautilus , Inc., v. Chao Chen Yang et al., 217 Cal. Rptr. 3d 458, 461 (Cal. Ct. App. 2017), for the proposition that Defendant’s burden required him, at a minimum, to provide testimony refuting that Defendant: (1) had fraudulent intent; (2) colluded with a person who was engaged in the fraudulent conveyance; (3) actively participated in the fraudulent conveyance; or (4) had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent. In other words, Plaintiff asserts that Defendant’s declaration fails because it does not address
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each of the specific elements set forth in Nautilus. In Nautilus, however, the Court did not address the defendant’s evidentiary burden in moving for summary judgement as to good faith, nor is Nautilus binding on the issue.
As discussed above, the standard for summary judgment is that the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Thus, Defendant has the burden to establish the defense of good faith. The question remains: Is the Defendant’s testimony sufficient to meet their burden on summary judgment, or did Defendant have to specifically recite and refute each of the Nautilus elements? In this case, the Court is inclined to find the Nautilus analysis thoughtful as to the elements a defendant would need to prove to establish a finding of good faith. That does not mean, however, that the Defendant had to refute those elements verbatim as part of its burden of production on summary judgment, nor does Plaintiff present any authority to that effect. Here Defendant’s testimony establishes that he did not know about the fraudulent activity, nor did he have reason to believe there was fraudulent activity, and that if he was aware of Bastorous’ intent he would not have invested. Given that factual presentation, with the understanding that the Plaintiff has not presented any evidence to establish a material fact as to any of the disjunctive Nautilus good faith tests, the Court cannot find that there remains any question of fact as to Defendant’s good faith. In other words, it appears to the Court that the Nautilus tests for good faith are subsumed within, and satisfied by, Defendant’s
testimony. Therefore, reviewing that evidence in light of Nautilus, the Court finds
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that Makar’s testimony satisfies the Nautilus court’s required showing. As such, the Court is inclined to adopt the prior tentative ruling in its entirety and GRANT summary judgment in favor of Defendant Makar, otherwise DENYING summary judgment as to the remaining Defendants.
On December 8, 2017, Mark Bastorous & Bernadette Shenouda ("Debtors") filed a Chapter 7 voluntary petition. 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 forty-five avoidance actions, including the four avoidance actions at issue here: (1) Pringle (TR) v. Bebawy & Nakhil (6:20-ap-1053- MH); (2) Pringle (TR) v. Makar (6:20-ap-1057-MH); (3) Pringle (TR) v. John 20/20 Enters, Inc. & Awad (6:20-ap-1076-MH); and (4) Pringle (TR) v. Labibs (6:20-
ap-1081-MH) (individually, the "Bebawy Action," the "Makar Action," the "John 20/20 Action," and the "Labib Action"; collectively, the "Actions").
Each of the complaints generally allege 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 for 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.
The defendants in the Actions are investors who received prepetition payment from
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Debtors. Specifically, the complaint alleges that: (1) defendants in the Bebawy Action received $223,166.66; (2) defendants in the Makar Action received $131,542.72; (3) defendants in the John 20/20 Action received $40,417; and (4) defendants in the Labib Action received $20,000.
Each of the defendants employed Corfield Feld LLP as counsel in the respective adversary proceedings. On November 20, 2020, defendants in the Actions filed motions for summary judgment that were materially similar. Defendants argue that:
the claims in the complaint are barred by the statute of limitations; and (2) defendants received payment for value and acted in good faith.
On December 7, 2020, the Court continued the four summary judgments hearings, specially setting the matters for hearing on January 27, 2021. On January 6, 2021, Trustee filed an opposition to the motion for summary judgment in each of the Actions. Trustee argues that there are genuine issues of material fact remaining in each of the Actions, specifically with regard to whether defendants took the transfers in good faith and provided reasonable equivalent value for the transfers. On January 13, 2021, defendants filed a reply in each of the Actions. Defendants also filed evidentiary objections in each of the Actions.
FACTUAL BACKGROUND
In the Bebawy Action, the defendants transferred $400,000 to Professional Investment Group, LLC ("PIG") in 2014. On May 27, 2014, defendants received three secured notes and accompanying deeds of trust with assignments of rent, two for $100,000 and one for $200,000. On May 27, 2015, defendants received a payment from PIG in the amount of $223,166.66. After defendants filed a lawsuit against Debtors, a settlement was reached; the settlement was only partially performed by Debtors, with an additional $40,000 payment being made to defendants.
In the Makar Action, defendant transferred $475,000 to PIG in 2012-2013. On May 27, 2014, defendant received a deed of trust and an assignment of rents related to certain real property located in Rancho Cucamonga; defendant exected a reconveyance of the deed on October 14, 2015. On October 30, 2015, defendant received a payment from PIG in the amount of $131,542.72
In the John 20/20 Action, defendant’s principals assert that they transferred $100,000 to USA Investment Group, LLC in 2012. The principals then transferred this investment to their corporation, the defendant in the John 20/20 Action. During
2014-2015, defendant received $40,417 from PIG.
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In the Labibs Action, defendants transferred $100,000 to one of Debtors’ business entities in 2012. In 2014-2015, defendants received $20,000 from PIG.
EVIDENTIARY OBJECTION
As a preliminary matter, the Court evaluates the evidentiary objections submitted by defendants and overrules all evidentiary objections. The Court notes that none of the objected to statements are necessary to the Court’s holding at this time, and defendants may renew any of the evidentiary objections at a future time.
STANDARD FOR SUMMARY JUDGMENT
When seeking summary judgment, the moving party has the burden of establishing (1) the absence of a genuine issue of material fact and (2) they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also FED. R. BANKR. P. Rule 7056. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. See Id. at 324. The court must view the evidence in the light most favorable to the nonmoving party and all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. See Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.
1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. See Sankovich v. Insurance Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Statute of Limitations
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Defendants first argument is that the Actions are barred by the statute of limitations. Noting that 11 U.S.C. § 548(a)(1) has a lookback period of two years, and that the transfers at issues in the Actions occurred more than two years prior to the petition date, defendants argue that "the Trustee has no viable claim against Defendants under 11 U.S.C. § 548."
While the complaints at issue briefly refer to 11 U.S.C. § 548(a)(1), the Actions are really claims under CAL. CIV. CODE § 3439, 11 U.S.C. § 544(b) and 11 U.S.C. § 550. Specifically, the Uniform Voidable Transactions Act provides for a statute of limitations of four years pursuant to CAL. CIV. CODE § 3439.09, and Trustee may utilize state law to seek to avoid transfers under 11 U.S.C. § 544(b). Trustee acknowledges that the statute of limitations has run on claims to the extent brought under 11 U.S.C.
§ 548. [Dkt. No. 19, pg. 7, n.2].
In reviewing the complaints, the causes of action are not drafted clearly. While the first claim for relief references 11 U.S.C. § 544(b) in the heading and in ¶¶ 27 and 31, the second claim for relief only references 11 U.S.C. § 544(b) in ¶ 34. The reference to § 550 and the California Civil Code statutes, couple with the reference to § 544 in
¶ 34, however, is sufficient to construe those claims as brought under § 544, and, as such, are not barred by the statute of limitations.
Good Faith Affirmative Defense
As noted by Trustee, "[t]he Defendants do not challenge any of the elements of the Trustee’s claim for actual fraud under California law pursuant to CAL. CIV. CODE § 3439.04(a)(1)." [Dkt. No. 19, pg. 7, lines 20-21]. Instead, defendants’ second, and primary, argument is that summary judgment is appropriate pursuant to CAL CIV. CODE
§ 3439.08(a), which provides: "A transfer or obligation is not voidable under paragraph (1) of subdivision (a) of Section 3439.04, against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or oblige."
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Reasonably Equivalent Value
Regarding reasonably equivalent value, defendants’ position is clear – they received less than their initial investment. Citing Donell v. Kowell, 533 F.3d 762 (9th Cir.
2008), defendants argue that they can only be liable for funds received in excess of their initial investment; here, there were no such profits. The opposition filed by Trustee includes the following quotation from Donnell:
[F]ederal courts have generally followed a twostep process [to determine if a debtor received reasonably equivalent value.] First, to determine whether the investor is liable, courts use the so-called ‘netting rule.’ Amounts transferred by the Ponzi scheme perpetrator to the investor are netted against the initial amounts invested by that individual. If the net is positive, the receiver has established liability, and the court then determines the actual amount of liability, which may or may not be equal to the net gain, depending on factors such as whether transfers were made within the limitations period or whether the investor lacked good faith. If the net is negative, the good faith investor is not liable because payments received in amounts less than the initial investment, being payments against the good faith losing investor’s as-yet unsatisfied restitution claim against the Ponzi scheme perpetrator, are not avoidable within the meaning of UFTA.
Id. at 771 (citation omitted); see also Bronston for J.W. James & Assocs. v. Razaghi, 2008 WL 11342596 at *2 (C.D. Cal. 2008) ("If the net is positive, the receiver has established liability, which may or may not be equal to the investor’s gains. If the net is negative, there is no recovery, provided the investor acted in ‘good faith’ at all relevant times.").
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In light of the "netting rule" articulated above, and in accordance with the general principles behind the approach, the Court analyzes defendants’ claims that reasonably equivalent value was provided and reaches the following conclusions:
In the Bebawy Action, the Court concludes that there remains a genuine issue of material fact whether reasonably equivalent value was provided. Specifically, in determining whether the net is positive or negative, the Court notes that three deeds of trust appear to have been transferred to the defendants. Therefore, it is not necessarily accurate to conclude that defendants merely received $263,166.66 on their $400,000 investment because it is unclear whether defendants are still the holder of the deeds of trust or whether those deeds of trust have value.
The Court notes that the settlement agreement provided as Exhibit H to the motion contemplates a payment of $40,000 in return for a release of one deed of trust, and a second payment of $215,000 in release for the other two deeds of trust. The moving papers indicate that this first payment was made, implying that one deed of trust was released, but assert that the second payment was not made, implying that the other two deeds of trust were not released. Paragraph 8 of the declaration of Amgad Bebawy indicates that a lawsuit for a breach of the settlement was filed, and settled, but a copy of this second settlement was not filed with the Court, nor its terms disclosed.
Additionally, that paragraph implies that Debtors did not perform under the second settlement prior to filing bankruptcy. As a result, it would appear that defendants have received $263,166.66 plus two deeds of trust for their initial investment of $400,000.
In the Makar Action, Trustee does not appear to offer any evidence or argument to controvert the assertion that the defendant provided reasonably equivalent value.
In the John 20/20 Action, the Court concludes that there remains a genuine issue of material fact whether defendant provided any value. Specifically, as noted in Trustee’s opposition papers, it appears that the original investment, upon which defendant was paid some money, was made by defendant’s CEO. Specifically, the declaration of defendant’s CEO includes the statement that "[t]his investment which began as a personal investment was later transferred to our corporation." [Dkt. No. 25, ¶ 2]. For
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that reason, and for the reasons stated in detail in the opposition, the Court concludes that defendant has not established that no genuine issue of material fact exists with regard to reasonably equivalent value.
In the Labibs Action, the Court concludes that there remains a genuine issue of material fact, namely whether an alter ego remedy would be appropriately imposed so that the Labibs payment to one of Debtors’ entities would constitute value received by the entity that actually transferred money to the Labibs. The Court notes that the first uncontroverted fact in docket 12 – "In 2012, Defendants invested $100,000 with Mark Bastorous through his company, Professional Investment Group, LLC – is controverted by its own claimed supporting evidence, which indicates that an investment was made in USA Investment LLC. Therefore, in accordance with the caselaw outline in footnote 5 of Trustee’s opposition, the Court concludes that there remains a genuine issue of material fact.1
Good Faith
The second requirement for an affirmative defense under CAL. CIV. CODE § 3439.08 is that the defendant(s) took in good faith. The California Court of Appeals has held that "a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent." Nautilus, Inc. v. Yang, 11 Cal. App. 5th 33, 37 (Cal. Ct. App. 2017) (emphasis in original); see also RPB SA v. Hyla, Inc., 2020 WL 6723491 at *12 (C.D. Cal. 2020) ("Nautilus, Inc. supports the view that a transferee does not act in good faith if he has actual knowledge of facts which would suggest to a reasonable person that the transfer was fraudulent.") (quotation omitted).
In response to each of the defendants’ general declarations that they had no knowledge of the Debtors’ fraudulent activities, the Trustee presents the following in the opposition papers:
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In the Bebawy action, Trustee asserts, but does not provide any evidence to support the assertion, that Amgad Bebawy was a construction manager at one of Debtors’ business. Trustee asserts that Mr. Bebawy "may have had access to information about Debtors’ and/or Related Entities financial condition." The only relevant evidence in support of the opposition is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut Mr. Bebawy’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the Bebawy Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
In the Makar Action, Trustee has not provided any evidence to rebut Mr. Makar’s declaration that he had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Therefore, the Court concludes that defendant in the Makar action have satisfactorily established the good faith element of CAL. CIV. CODE
§ 3439.08.
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In the John 20/20 Action and the Labibs Action, the only relevant evidence in support of the opposition to a finding that defendants took in good faith is a single sentence that provides: "My firm is still collecting and analyzing documents and other information to determine if the Defendant received the Transfers in good faith."
The Court agrees with the arguments in the reply that Trustee has not provided any admissible evidence to rebut the declarations that defendants had no knowledge of or reason to believe that Debtors were engaged in fraudulent activities. Trustee cannot create a genuine issue of material fact by simple stating it is still analyzing whether defendants took in good faith, especially when Trustee has not taken any action to seek a continuance of the hearing (which has already been continued by the Court once). See FED. R. CIV. P. Rule 56(c) (a party asserting that a fact is genuinely disputed must support the assertion by citing to the record); FED. R. CIV. P. Rule 56(d) (providing that Court may continue the hearing if a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"); see also Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (citations omitted). Therefore, defendants having provided some evidence that they acted in good faith, and there being nothing in the record that would support a conclusion to the contrary, the Court concludes that defendants in the John 20/20 Action and the Labibs Action have satisfactorily established the good faith element of CAL. CIV. CODE § 3439.08.
TENTATIVE RULING
The Court is inclined to GRANT the motion as to the Makar Action and DENY the motion as to the other three actions
Given that the third claim for relief is conditioned on success on one of the first two claims for relief, the Court is inclined enter judgment in favor of the defendant in the Makar Action.
To the extent Trustee wishes to seek leave to amend any of the complaints at issue,
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the Court will require a properly noticed and served motion.
APPEARANCES REQUIRED.
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
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01052 Pringle v. Saber et al
EH
Docket 12
On December 8, 2017, Mark Bastorous & Bernadette Shenouda (collectively, "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 Am Saber & Yousria Mikhail Guirguis (collectively, "Defendants"). Trustee’s complaint contained three causes of action: (1) actual fraudulent transfer; (2) constructive 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
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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
$16,500 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On January 12, 2021, Trustee filed a motion for default judgment against Defendants, 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.
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 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 Defendants, or that would indicate how Trustee determined that the address used was a valid service address for Defendants .
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 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). 11 U.S.C.
§ 544(b)(1) provides that a "trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor." And CAL. CIV. CODE § 3439.04(a)(1) provides:
(a) 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
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the obligation as follows:
(1) With actual intent to hinder, delay, or defraud any creditor of the
debtor
Here, Debtors’ bankruptcy estate was consolidated with a variety of entities, include PIG, and, as such, the adequately alleged transfer from PIG to Defendants constitutes a transfer of Debtors’ property. The subject transfers, occurring during 2015, occurred within four years of the bankruptcy filing, and, pursuant to the claims register in Debtors’ bankruptcy case, a creditor existed at the time the subject transfers were made.
Regarding intent, the Ninth Circuit 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, 704 (9th Cir. 2008). Here, the Court finds that the uncontroverted allegations in the complaint, taken as true, are sufficient to establish the existence of a Ponzi scheme, and, therefore, that Debtors’ actual intent to defraud has been established.
While the Ninth Circuit’s "netting rule," restricts the recovery in the context of a Ponzi scheme, that reduction is part of a good faith affirmative defense that has not been raised by Defendants here. See, e.g., Donell v. Kowell, 533 F.3d 762, 771 (9th Cir. 2008) ("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.’ However, there is a ‘good faith’ defense that permits an innocent winning investor to retain funds up to the amount of the initial outlay.").
For the reasons stated in the motion for default judgment and the complaint, the Court finds that recovery and preservation of the avoided transfers, under 11 U.S.C. §§ 550 and 551, respectively, is appropriate.
Conditioned upon Trustee providing a representation regarding attempts to verify
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service upon Defendants, the Court is inclined to GRANT the motion, entering judgment on the first and third claims for relief.
APPEARANCES REQUIRED.
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 David M Goodrich Reem J Bello
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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, 11/18/20,1/13/21
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
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Plaintiff(s):
Mona Gerges Represented By
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#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
Docket 23
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v. McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
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In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
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
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Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
Docket 14
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v. McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
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In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
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
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Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
Docket 19
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v. McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
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In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
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
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
*Another Summons issued per Plaintiff request on 10/14/20
*Another Summons issued per Plaintif request on 12/7/20 From: 11/25/20,12/2/20
EH
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
11:00 AM
From: 12/3/20,12/15/20,1/5/21 EH
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
11:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 1/5/21 EH
Docket 36
The Court notes that there is no evidence from Debtor as to efforts to remedy the unpermitted patio structure. Parties to apprise the Court of the status of repairs pursuant to the UHC Notice and Order-Repair, and of any adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James G. Beirne
11:00 AM
Movant(s):
Specialized Loan Servicing LLC Represented By
John Rafferty Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
From: 1/12/21 EH
Docket 42
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of adequate protection discussions, if any. APPEARANCES REQUIRED.
Debtor(s):
Juan I. Gallardo Represented By Tina H Trinh
Movant(s):
U.S. Bank National Association, not Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AJAX MORTGAGE LOAN TRUST 2019-E, MORTGAGE BACK SECURITIES, SERIES 2910-E BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
EH
Docket 78
- NONE LISTED -
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Movant(s):
Ajax Mortgage Loan Trust 2019-E, Represented By
Reilly D Wilkinson Joshua L Scheer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
Docket 39
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Darrell L. Washington Represented By Gary S Saunders
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 23
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 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):
Efren Valenzuela Represented By Edgar P Lombera
Movant(s):
TOYOTA MOTOR CREDIT Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
MOVANT: BANK OF THE WEST
EH
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
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 states that Debtors intend to "retain" and "undecided." This is not an option listed in § 362(h)(1)(A), and would appear similar to selecting "ride-through," an option that is not available in this circuit. See In re Dumont,
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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):
Les Robert Buzbee Represented By Stephen H Darrow
Joint Debtor(s):
Wendy Jane Buzbee Represented By Stephen H Darrow
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: BROKER SOLUTIONS INC.
EH
Docket 10
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1)
-DENY relief from stay pursuant to 11 U.S.C. § 362(d)(2) because the motion asserts that there is equity in the subject property
-GRANT relief from Rule 4001(a)(3) stay
-GRANT requests under ¶¶ 2 and 3
-DENY alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
11:00 AM
Movant(s):
Broker Solutions Inc. dba New Represented By
Erin M McCartney
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
Docket 8
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 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):
Carlos Alanis Jr. Represented By Aaron Lloyd
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
92557
MOVANT: DEUTSCHE BANK
From: 2/2/21 EH
Docket 117
Movant to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Movant(s):
Deutsche Bank National Trust Represented By Kirsten Martinez
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HOME EXPO FINANCIAL, INC. EH .
Docket 6
- NONE LISTED -
Debtor(s):
Christine Marlo Represented By Bruce A Boice
Movant(s):
Home Expo Financial, As Trustee of Represented By
William E Windham
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
(Tele. appr. Howard Grobstein, chapter 7 trustee)
(Tele. appr. Nancy Zamora, Bankruptcy Counsel for chapter 7 trustee)
Docket 56
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: $ 7,043.09 Trustee Expenses: $ 0.00
Attorney Fees: $ 26,865 Attorney Costs: $ 1,566.68
Accountant Fees: $ 2,423.50 Accountant Costs: $ 28.50
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
11:00 AM
Debtor(s):
Nereo Gomez Represented By John F Brady Luis E Lopez
Trustee(s):
Howard B Grobstein (TR) Represented By Nancy H Zamora Luis E Lopez
11:00 AM
EH
(Tele. appr. Alan Forsley, rep. Howard Grobstein, chapter 7 trustee)
Docket 296
On March 20, 2013, David & Elise Wakefield filed a Chapter 7 voluntary petition. On February 12, 2014, Kenneth Charlton ("Creditor") filed a proof of claim for an unsecured claim in the amount of $447,935.21 ("Claim 19"). On October 18, 2019, Creditor filed an amended proof of claim, reducing the amount of $220,881.50.
On January 12, 2021, Trustee filed an objection to Claim 19. Trustee asserts that the amended proof of claim was filed as Claim 21, and is, therefore, a duplicate claim that was intended to supersede Claim 19. The Court’s Claim Register, however, already identifies the amended proof of claim as amending Claim 19 – although there is a notation that says the claim was originally filed as Claim 21. Therefore, this claim objection appears moot.
11:00 AM
The Court is inclined to OVERRULE the objection as MOOT. APPEARANCES REQUIRED.
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
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
EH
(Tele. appr. Brandon Iskander, rep. trustee, Charles Daff)
Docket 37
- NONE LISTED -
Debtor(s):
RJL Sports Protection Inc. Represented By
Kevin Liu - SUSPENDED -
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
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, 11/18/20,12/2/20
(Holding date) 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))
Also #6, 8, 9
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, 11/25/20,12/2/20
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
2:00 PM
BLACK AND WHITE INK Pro Se
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))
Also #5, 8, 9
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, 11/25/20,12/2/20
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
2:00 PM
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
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, 2/12/20
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
Also #5, 6, 9
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, 11/25/20,12/2/20
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, 9/30/20,
11/25/20,12/2/20
Also #5, 6, 8 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#: 6:19-01080 United States Trustee for the Central District of v. Bastorous et al
From: 7/17/19, 8/28/19, 10/2/19, 10/7/20 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):
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#: 6:18-01100 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, 11/4/20
EH
(Tele. appr. Robert Goe, rep. Defendant, Vance Johnson)
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#: 6:20-01032 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, 10/18/20,2/3/21 EH
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 Brad A Mokri
Christos Minoudis Represented By Brad A Mokri
2:00 PM
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#: 6:20-01112 Cruz v. Cruz
Complaint by Patricia Marlen Cruz against Ronald V. Cruz. 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)),(64 (Dischargeability - 523(a)(15), divorce/sep property settlement/decree)),(91 (Declaratory judgment)) filed by Plaintiff Patricia Marlen Cruz). (Brownstein, William)
From: 8/19/20 EH
(Tele. appr. William Brownstein, rep. Plaintiff, Patricia Cruz)
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
2:00 PM
Trustee(s):
Charles W Daff (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, 10/28/20,12/23/20
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
11:00 AM
EH
Docket 231
On July 28, 2016, Luevina Henry ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s bankruptcy case and related adversary proceeding had a long and convoluted procedural history, involving multiple appears. During the majority of these proceedings, Debtor proceeded in pro se.
On August 18, 2016, the Court granted relief from stay to John L. Baker ("Baker") to proceed with a family court action pending in state court. On July 11, 2017, a judgment was entered in the divorce action providing for the sale of certain real property located at 8512 Vienna Dr., Corona, CA. On August 24, 2017, Debtor filed a pro se appeal to the Bankruptcy Appellate Panel, although it is not clear what she was appealing. The next day, Debtor commenced an adversary proceeding against a variety of defendants for: (1) violation of the automatic stay; and (2) violation of civil rights.
The BAP appeal was ultimately dismissed on June 27, 2018, for lack of jurisdiction. On July 25, 2018, Debtor’s bankruptcy case was dismissed. Debtor subsequently unsuccessfully attempted to vacate the dismissal of the bankruptcy case and prosecute the adversary proceeding. Both the main bankruptcy case and the adversary
11:00 AM
proceeding were closed on May 13, 2020, after the dismissal of all defendants to the adversary proceeding.
Between October 23, 2019 and November 7, 2019, Debtor filed three notices in the dismissed bankruptcy case, all of which could fairly be characterized as a notice of entry of judgment. The first three sentences of docket number 228 state:
Debtor Luevina Herny is notifying all parties that the U.S. Bankruptcy Appellate Panel of the Ninth Circuit issued a separate Judgment in the Chapter 13 on 6/27/2018 against all parties known and unknown who violated the Chapter 13 bankruptcy stay. This Notice includes the names of all parties that are known so far who violated the Chapter 13 bankruptcy stay, Case No.: 6:16-bk-16720-MJ. Money Judgment and liens will be recorded against all parties, Title 28 U.S.C. § 1962 Lien, and registered with the Franchise Tax Board and the California Secretary of State.
[Dkt. No. 228, pg. 1, liens 21-28] (parentheticals omitted, formatting altered). As noted, the judgment issued by the BAP dismissed Debtor’s appeal.
On January 7, 2021, Ticor Title Company of California & Sheri Kanesaka (collectively, "Movants") filed a motion to reopen the bankruptcy case.
Movants are among the many individuals or entities that Debtor asserts the BAP issued a judgment against. Movants assert that: "Debtor filed a false and fraudulent document with the Court purporting to create a lien or judgment against the Moving Parties. This can significantly impact Moving Parties’ business affairs, credit, and other matters.
On January 15, 2021, Debtor filed an objection to the motion to reopen and requested that Movants be sanctioned for "bad faith, perjury and fraud." On February 4, 2021, the Chapter 13 Trustee filed a notice of joinder in the
11:00 AM
motion to reopen. On February 8, 2021, Debtor filed another response.
The Court notes that the attachments to Debtor’s objection indicate that Debtor recorded both Dkt. No 228, and the same document filed in the BAP proceeding, with the Riverside County Recorder’s Office, purporting to create a lien again a variety of individuals or entities.
11 U.S.C. § 350 provides that a bankruptcy case may be reopened for cause. Local Rule 5010 provides that a motion to reopen a bankruptcy case may be ruled on without a hearing. As such, it is a summary proceeding.
Here, it is not entirely clear from the moving papers what steps Movants or the Chapter 13 Trustee intend to take if the case is reopened. The Court notes, however, that at least one of the documents underlying a purported lien recorded in the Riverside County Recorder’s Office is a pleading filed in the instant bankruptcy case. It appearing that Movants want to file a motion to strike docket number 228 and/or to seek an order interpreting docket number 228, the Court is inclined to find that cause has been shown to reopen the case.
The Court is inclined to GRANT the motion, reopening the bankruptcy case.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Ticor Title Company of California Represented By
Sheri Kanesaka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 99
- NONE LISTED -
Debtor(s):
Oraib Innabi Represented By
Julie J Villalobos
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
Docket 123
- NONE LISTED -
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Movant(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 1/21/21 EH
Docket 120
- NONE LISTED -
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 1/21/21 EH
Docket 92
- 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
11:00 AM
Also #5
From: 1/21/21 EH
Docket 95
- 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
Movant(s):
Joe Wallace Brown Represented By Christopher J Langley Michael Smith
Yolanda Denise Moore Represented By Christopher J Langley Michael Smith
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 92
1/7/2021
In the instant motion (Dkt. No. 92), filed December 15, 2020, Trustee seeks to dismiss Case 6:18-bk-16064 filed under Chapter 13 by Michael D. Wickham and JoAnn Y. Wickham ("Debtors") with an order denying discharge.
Although Debtors have completed all the plan payments designated to be paid through the Trustee, they have defaulted in paying their mortgage directly to Lakeview Loan Servicing, LLC ("Lender"). In its response to Trustee’s notice of final cure payment, Lender asserts that Debtor is $11,295.07 in post-petition arrears since June 1, 2020. (Dkt. No. 92, Attachment 1).
As a preliminary matter, the Court does not formally "deny" a discharge for failure to make payments. Rather, if Debtor has not satisfied the requirements for receiving a discharge, the Court would dismiss the case rather than enter a discharge. Therefore, the Court will construe Trustee’s motion as a request to dismiss the case under 11
U.S.C. § 1307.
Here, Debtors have materially defaulted under the terms of the plan by failing to make mortgage payments. Therefore, it is proper for the Court to dismiss the case.
11:00 AM
Notice appearing proper, good cause appearing, and no opposition having been filed, the Court is inclined to GRANT the motion to the extent of dismissing the case.
APPEARANCES REQUIRED.
Debtor(s):
Michael D. Wickham Represented By
M. Wayne Tucker
Joint Debtor(s):
JoAnn Y. Wickham Represented By
M. Wayne Tucker
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #9 From: 2/4/21 EH
Docket 48
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 58
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 71
- 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 1
- NONE LISTED -
Debtor(s):
Shawn Hawkins Cole Represented By Timothy S Huyck
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Kayla Marie McDade Represented By Jacqueline D Serrao
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Gilmar E. Bautista Represented By Michael Smith
Joint Debtor(s):
Nadia Bautista Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Jaime Zermeno Represented By Paul Y Lee
Joint Debtor(s):
Lorena Zermeno Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Ching Perng Tu Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 132
- NONE LISTED -
Debtor(s):
Donald Leroy Woodruff Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 62
- NONE LISTED -
Debtor(s):
Elizabeth M Molinari Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
From: 1/7/21,2/4/21 EH
Docket 57
- NONE LISTED -
Debtor(s):
Elizabeth M Molinari Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 124
- 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 158
- 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 77
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 110
- NONE LISTED -
Debtor(s):
Eriberto A. Sandoval Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 71
- NONE LISTED -
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Ricky Antonio Scott Represented By Eva M Hollands
Joint Debtor(s):
Shemida Shiloni Scott Represented By Eva M Hollands
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 100
- NONE LISTED -
Debtor(s):
Yolanda Williams Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 82
- NONE LISTED -
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
David Patrick Hale Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 39
- NONE LISTED -
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- 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 48
- NONE LISTED -
Debtor(s):
Pamela M Bradford Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 43
- NONE LISTED -
Debtor(s):
Merle Roger Johnson Represented By Arlene M Tokarz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 34
- NONE LISTED -
Debtor(s):
Darrell L. Washington Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
1:30 PM
EH
Docket 2
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
1:30 PM
EH
Docket 3
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
1:30 PM
EH
Docket 4
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
11:00 AM
Also #2 EH
(Tele. appr. Dane Exnowski, rep. moving party, Nationstar Mortgage LLC) (Tele. appr. Alla Tenina, rep. Debtor, Rodolfo Aguiar)
Docket 88
- NONE LISTED -
Debtor(s):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #1
MOVANT: NATIONSTAR MORTGAGE
From: 2/2/21 EH
(Tele. appr. Dane Exnowski, rep. moving party, Nationstar Mortgage LLC) (Tele. appr. Alla Tenina, rep. Debtor, Rodolfo Aguiar)
Docket 84
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski Arnold L Graff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
(Tele. appr. Dane Exnowski, rep. creditor, Nationstar Mortgage LLC)
Docket 52
Movant to apprise Court of the status of arrears and adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Javier Ortega Represented By
Alon Darvish - SUSPENDED BK - Ghada Helena Philips
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Melissa Licker Dane W Exnowski John D Schlotter
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SELECT PORTFOLIO SERVICING INC.
EH
(Tele. appr. Michael Berger, rep. Debtors Dwayne and Dana Williams) (Tele. appr. Wendy Locke, rep. creditor, Select Portfolio Servicing Inc.)
Docket 90
- NONE LISTED -
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HYUNDAI LEASE TITLING TRUST
EH
(Tele. appr. Sheryl Ith, rep. creditor, Hyundai Lease Titling Trust)
Docket 55
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 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):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
11:00 AM
Movant(s):
Hyundai Lease Titling Trust Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
No.WBY1Z2C55FV555484 with Proof of Service MOVANT: ALLY FINANCIAL
EH
(Tele. appr. Wendy Locke, rep. creditor, Ally Financial)
Docket 75
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 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):
Juan Manuel Andrade Represented By
J.D. Cuzzolina
Joint Debtor(s):
Cecilia R Andrade Represented By
J.D. Cuzzolina
Movant(s):
Ally Financial Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 12/15/20,1/19/21 EH
Docket 72
- NONE LISTED -
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
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 10
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 requests under ¶¶ 11 and 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):
Kim Malveo Jones Represented By Daniel King
Movant(s):
TD Auto Finance LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance)
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)--
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
(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 passed pursuant to 11 U.S.C. § 521(a)(2) (A), the automatic stay terminated as a matter of law.
Therefore, the Court is inclined to DENY the motion as moot.
APPEARANCES REQUIRED.
Debtor(s):
Meredith Gina Gonzalez Represented By Paul Y Lee
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK
EH
(Tele. appr. Wendy Locke, rep. creditor, JPMorgan Chase Bank)
Docket 11
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) because the motion asserts there is equity in the subject property
-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):
Gale Webb Represented By
Carey C Pickford
Movant(s):
JPMorgan Chase Bank, N.A. Represented By
11:00 AM
Trustee(s):
Josephine E Salmon
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, GM Financial)
Docket 12
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 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):
Jonathan R. Valle Represented By Michael Jay Berger
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: HOWARD E. TERRELL
EH
(Tele. appr. Diane Weifenbach, rep. moving party, U.S. Bank, National Association as Legal Title Trustee for Truman 2016 SC6 Title)
Docket 7
The Court, having reviewed the motion and the opposition of U.S. Bank, is inclined to DENY the motion on both procedural and substantive grounds. The Court notes that:
the motion was not served on creditors; (2) the motion contains no declaration of Debtor or any material evidence; and (3) the motion does not contain any valid argument to rebut the presumption under 11 U.S.C. § 362(c)(3)(C)(i)(II)(aa) that the case was filed in bad faith. For those reasons, and the reasons set forth in the opposition filed as docket number 17, the Court is inclined to DENY the motion.
APPERANCES REQUIRED.
Debtor(s):
Howard E Terrell Represented By Anthony P Cara
Movant(s):
Howard E Terrell Represented By
11:00 AM
Trustee(s):
Anthony P Cara
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance)
Docket 7
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 requests 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):
Larell Dionta Travis Represented By Vernon R Yancy
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
11:00 AM
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 13
Service: Proper Opposition: None
The Court, having reviewed the motion, notice appearing proper and no opposition having been filed, is inclined to find that Debtor has presented sufficient evidence to rebut the statutory presumption of bad faith arising under 11 U.S.C. § 362(c)(3)(C)(i) (II)(aa), and is inclined to CONTINUE the automatic stay as to all creditors.
APPEARANCES REQUIRED.
Debtor(s):
Erik L. Liebherr Represented By
Joseph Arthur Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
From: 2/16/21 EH
(Tele. appr. Tran Nguyen, rep. Debtor, Darrell Washington)
(Tele. appr. Darlene Vigil, rep. creditor, Nationstar Mortgate LLC)
Docket 39
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Darrell L. Washington Represented By Gary S Saunders
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 53
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 under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. 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 Coleman Represented By Nathan Fransen
11:00 AM
Joint Debtor(s):
Rosalinda Maria Coleman Represented By Nathan Fransen
Movant(s):
Deutsche Bank National Trust Represented By Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Also #2
From: 2/18/21 EH
(Tele. appr. Steven Fox, rep. Debtor, DW Trim Inc.)
(Tele. appr. Thomas Fawkes, rep. creditor, Huttig Building Products, Inc.) (Tele. appr. Steven Imhoof, rep. interested party, FH II, LLC)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
(Tele. appr. Richard Sieving, rep. creditor, Jeld-wen Inc., American Building Supply Inc.)
(Tele. Michael Williams, rep. creditor, Pardee Homes) (Tele. appr. Doug Willis, in Propria Persona)
(Tele. appr. Christopher Demint, rep. client, DW Trim, Inc.)
Docket 3
- NONE LISTED -
2:00 PM
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
(OST signed 2/24/21) EH
(Tele. appr. Steven Fox, rep. Debtor, DW Trim Inc.)
(Tele. appr. Thomas Fawkes, rep. creditor, Huttig Building Products, Inc.) (Tele. appr. Steven Imhoof, rep. interested party, FH II, LLC)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
(Tele. appr. Richard Sieving, rep. creditor, Jeld-wen Inc., American Building Supply Inc.)
(Tele. Michael Williams, rep. creditor, Pardee Homes) (Tele. appr. Doug Willis, in Propria Persona)
(Tele. appr. Christopher DeMint, rep. client, DW Trim, Inc.)
Docket 34
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By
2:00 PM
Steven R Fox
10:00 AM
EH
Docket 21
- NONE LISTED -
Debtor(s):
Jay Carl Jones Represented By Allison F Tilton
Joint Debtor(s):
Merry Jones Represented By
Allison F Tilton
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 19
- NONE LISTED -
Debtor(s):
Gabriel P Den Hartog Represented By Gary J Holt
Joint Debtor(s):
Todd A Den Hartog Represented By Gary J Holt
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Ashley Lauren Darling Represented By Aaron Lloyd
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Edgar A Vazquez Represented By Matthew D. Resnik
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Felisa Jean Cole Represented By Allison F Tilton
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Docket 148
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: $ 1,909.65 Trustee Expenses: $ 380.40
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):
James Leonard Blow Jr. Represented By Jonathan D Doan
Joint Debtor(s):
Amanda Joyce Atkinson-Blow Represented By Jonathan D Doan
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
*Placed on calendar by order signed on 2/2/21
Docket 23
- NONE LISTED -
Debtor(s):
Norman B March Jr. Represented By Brian J Soo-Hoo
Richard L. Sturdevant
Movant(s):
Norman B March Jr. Represented By Brian J Soo-Hoo Brian J Soo-Hoo Brian J Soo-Hoo
Richard L. Sturdevant Richard L. Sturdevant Richard L. Sturdevant
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 73
- NONE LISTED -
Debtor(s):
Joseph F. Mark Represented By Keith Q Nguyen
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 43
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Attorney 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: $ 2,750.00 Trustee Expenses: $ 86.16
Attorney Fees: $7,544.50 Attorney Costs: $209.40
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):
Nancy L Mata-Ramos Pro Se
Trustee(s):
Karl T Anderson (TR) Represented By Robert A Hessling
11:00 AM
Docket 44
No opposition has been filed. Service was Proper.
The application for compensation of the Trustee has been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,250 Trustee Expenses: $ 73.29
APPEARANCES WAIVED. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
Debtor(s):
David Valadez Represented By Marlin Branstetter
Joint Debtor(s):
Loretta Valadez Represented By Marlin Branstetter
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 37
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: $ 1,257.92 Trustee Expenses: $ 82.35
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):
Enrique Benitez Bautista Represented By Tristan L Brown
Joint Debtor(s):
Martha Alonso Represented By Tristan L Brown
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Docket 38
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: $ 1,520 Trustee Expenses: $ 62.73
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):
Oscar Manuel Alvarado Olivia Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Maria Celia Monge De Alvarado Represented By
Jaime A Cuevas Jr.
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Docket 40
No opposition has been filed. Service was Proper.
The applications for compensation of the Trustee and Attorney 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: $ 1,086.74 Trustee Expenses: $ 92.36
Attorney Fees: $0.00 Attorney Costs: $0.00
The Court notes that Trustee entered into a sale/settlement/compromise regarding the estate’s interest in Debtor’s residence, but failed to seek Court approval of the transaction. Therefore, Trustee having lacked authorization to engage in the transaction, and thus having failed to administer the estate in accordance with the Federal and Local Rules, the Court is inclined to disallow all attorney compensation and reduce Trustee’s compensation to an amount calculated on distributions to the single unsecured creditor.
APPEARANCES REQUIRED.
Debtor(s):
Nelly Guadalupe Seneff Represented By
11:00 AM
Trustee(s):
Todd L Turoci
Karl T Anderson (TR) Represented By Robert A Hessling
11:00 AM
EH
Docket 26
On September 21, 2020, Irene Lopez ("Debtor") filed a Chapter 7 voluntary petition. On January 4, 20210, Debtor received a discharge.
On February 3, 2021, Trustee filed a notice of assets. On February 10, 2021, Trustee filed a stipulation with Debtor and a motion to approve compromise that requested approval of the terms of the stipulation.
The stipulation relates to certain real property located at 7637 Eastwood Ave., Rancho Cucamonga, CA 91730 (the "Property"). On the petition date, Debtor held a joint tenancy interest in the Property with her parents. Between August and October 2020, both of Debtor’s parents passed away. On Schedule A, Debtor valued the Property at
$500,000. On Schedule D, Debtor listed two liens against the Property, aggregating
$329,115. Debtor claimed an exemption in the Property in the amount of $175,000. Trustee asserts that the value of the Property is between $525,000 and $550,000.
11:00 AM
Pursuant to the stipulation, Debtor agrees to subordinate her claimed exemption to costs of sale and Trustee’s compensation, and to $50,000 in sale proceeds. Trustee agrees to cap real estate broker compensation at 4.5% of the Property’s sale price and to waive any reinvestment requirement.
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.
The instant compromise clearly meets the A&C Properties factors and is in the best interests of the estate. According to the motion, "the Trustee’s sole waiver of claims relates to the Estate’s contingent claim to recover the homestead exemption proceeds in the event that Debtor fails to comply with the homestead reinvestment requirement." But the motion also asserts that "[i]f the Homestead Exemption remained undisturbed, there would be insufficient estimated net equity in the Property available to pay for the administrative cost of selling the Property." In other words, it is likely that Trustee would not be able to sell the Property absent the stipulation, and,
11:00 AM
therefore, the contingent claim being waived by Trustee would not materialize. For that reason, the Court concludes that the proposal is in the best interests of the estate and satisfies all of the A&C Properties factors.
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):
Irene Lopez Represented By
Paul V Reza
Movant(s):
Karl T Anderson (TR) Represented By Richard A Marshack Tinho Mang
Chad V Haes
Trustee(s):
Karl T Anderson (TR) Represented By Richard A Marshack Tinho Mang
Chad V Haes
12:00 PM
Docket 6
- NONE LISTED -
Debtor(s):
Wyatt Clancy Cheek Pro Se
Movant(s):
Wyatt Clancy Cheek Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
Also #16 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
2:00 PM
Jiyoung Kym
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
Also #15
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 9/15/20,10/18/20,2/3/21
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
2:00 PM
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
From: 9/2/20, 10/7/20, 10/14/20, 12/2/20 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
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Sundee Teeple, rep. Debtors, Jonathon & Jacqueline Stoner)
Docket 91
- 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
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Mena Sadat Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Jose M Vazquez Javier Pro Se
Trustee(s):
Rod (MH) Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
LENOIS STOVALL Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maisha Tamu Mesa Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Daniel King, rep. Debtor, Bonifacio Bagaporo)
Docket 0
- NONE LISTED -
Debtor(s):
Bonifacio Taloma Bagaporo Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jack Kelly Jackson Pro Se
Trustee(s):
Rod (MH) Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
ADRIANA VARGAS Represented By Jamil L White
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 120
- NONE LISTED -
Debtor(s):
Alexis I Barahona Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 92
- 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
EH
Docket 124
- 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 80
- NONE LISTED -
Debtor(s):
Denise Cherie Darden Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joselina Medrano, rep. Debtor, Sherry Stokes)
Docket 79
- NONE LISTED -
Debtor(s):
Sherry L. Stokes Represented By Gregory Ashcraft
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, Jose & Maria Aguiar)
Docket 45
- NONE LISTED -
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 67
- 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
Docket 46
- NONE LISTED -
Debtor(s):
Katina Deneen Edwards Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
Darrell L. Washington Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 81
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Terrence Fantauzzi, rep. Debtor, Larry Smith)
Docket 49
- NONE LISTED -
Debtor(s):
Larry W. Smith Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 75
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Daniel King, rep. Debtors, Michael & Juana Holguin)
Docket 42
- NONE LISTED -
Debtor(s):
Michael Rudy Holguin Represented By Daniel King
Joint Debtor(s):
Juana Patricia Holguin Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 103
- 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. Seema Sood, rep. Debtor, Donna Upton)
Docket 99
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROSETTA CANYON COMMUNITY ASSOCIATION
EH
(Tele. appr. Nicole Lilomaiava, rep. creditor, Rosetta Canyon Community Association)
Docket 46
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed eleven assessment payments. Accordingly, the Court is inclined to:
-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.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
11:00 AM
Debtor(s):
Jose Antonio Contreras Represented By A Mina Tran
Joint Debtor(s):
Mayra Lorena Contreras Represented By A Mina Tran
Movant(s):
Rosetta Canyon Community Represented By Erin A Maloney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PANNYMAC LOAN SERVICING LLC
EH
(Tele. appr. Christina Khil, rep. creditor, PennyMac Loan Services)
Docket 49
The Court, having reviewed and considered the motion, no opposition having been filed, finds cause exists where Debtor has missed four mortgage payments.
Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 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.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
11:00 AM
Debtor(s):
Salem Eid Massoud Represented By Andy Nguyen
Movant(s):
PennyMac Loan Services, LLC Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
EH
(Tele. appr. Eric Enciso, rep. creditor, Ocwen Loan Servicing)
Docket 51
The Court notes that Movant has not provided any evidence establishing that Debtor lacks equity in the property in support of its request for relief from stay pursuant to § 362(d)(2). Notwithstanding, having reviewed and considered the motion, no opposition having been filed, the Court finds cause exists where Debtor has missed three mortgage payments. Accordingly, the Court is inclined to:
-DENY relief from stay pursuant to 11 U.S.C. § 362(d)(2);
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 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.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
11:00 AM
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
(Tele. appr. Austin Nagel, rep. creditor, Toyota Motor Credit Corporation)
Docket 47
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):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
11:00 AM
MOVANT: SANTANDER CONSUMER USA, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA, Inc.)
Docket 14
The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY request for adequate protection in the alternative 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):
Sandalia Magdalena Gonzales Represented By Lauren Ross
11:00 AM
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA, Inc.)
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)--
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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor has left the statement of intention as to the 2018 Ram 1500 blank. The Debtor was required to select to either surrender or retain the property. See 11 U.S.C.
§ 362(h)(1)(A). As the thirty-day 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):
James Kevin Spry Represented By Carey C Pickford
Joint Debtor(s):
Kelly Nicole Spry Represented By Carey C Pickford
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
$2,161.96
EH
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. Cameron Ridley, rep. United States Trustee) (Tele. appr. Jerry Seelig, Patient Care Ombudsman) (Tele. appr. David A. Wood, rep. Creditors' Committee)
Docket 923
Service proper
No opposition filed
The third and final application for compensation of Marshack Hays LLP, Counsel for the Committee of Unsecured Creditors, has been set for hearing on the notice required by LBR 2016-1. Counsel seeks fees in the amount of $28,720.50 and costs in the amount of $2,161.96 for the period of September 3, 2020 through February 11, 2021. See Dkt. 923.
The Court previously allowed interim amounts of $87,635 and $56,032.50 in fees and
$1,176.05 and $788.63 in costs for the two prior application periods with a twenty percent holdback on fees pending final approval. The Court, having reviewed the
2:00 PM
final fee application, finding amounts reasonable in light of the complexity of the case, the work of Counsel, the actual and potential recovery to the unsecured creditors, and the Committee’s declaration in support of the application, is inclined to APPROVE, on a final basis, the total amount of fees and costs requested, including authorizing payment of the twenty-percent in fees held back, as follows:
Total Fees: $ 172,338 Total Expenses: $ 4,126.64
APPEARANCES WAIVED. 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
2:00 PM
$1366.57
EH
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. Cameron Ridley, rep. United States Trustee) (Tele. appr. Jerry Seelig, Patient Care Ombudsman) (Tele. appr. David A. Wood, rep. Creditors' Committee)
Docket 918
Service proper
No opposition filed
The third and final application for compensation of Weiland Golden Goodrich LLP, Counsel for the Debtor, Vising Nurse Association of the Inland Counties, has been set for hearing on the notice required by LBR 2016-1. Counsel seeks fees in the amount of $32,095 and costs in the amount of $1,366.57, the total amount to be reduced by
$185 per stipulation with the US Trustee, for the period of October 16, 2020 through December 27, 2020. See Dkt. 934.
The Court previously allowed interim amounts of $242,074 and $290,185 in fees and
$4,230.61 and $13,898.59 in costs for the two prior application periods with a twenty percent holdback on fees pending final approval. The Court, having reviewed the
2:00 PM
final fee application, finding amounts reasonable in light of the complexity of the case and the work of Counsel, is inclined to APPROVE, on a final basis, the total amount of fees and costs requested, including authorizing payment of the twenty-percent in fees held back, as follows:
Total Fees: $ 564,169
Total Expenses: $ 19,495.77
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):
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
EH
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. Cameron Ridley, rep. United States Trustee) (Tele. appr. Jerry Seelig, Patient Care Ombudsman) (Tele. appr. David A. Wood, rep. Creditors' Committee)
Docket 919
Service proper
No opposition filed
The second and final application for compensation of Jerry Seeling, the patient care ombudsman has been set for hearing on the notice required by LBR 2016-1. Seeling seeks final approval of fees in the amount of $28,173.50 and costs in the amount of
$570, which the Court has previously allowed subject to a twenty-percent fee holdback. The Court is inclined to APPROVE, on a final basis, the total amount of fees and costs requested, including authorizing payment of the twenty-percent in fees held back, as follows:
Total Fees: $ 28,173.50 Total Expenses: $ 570
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):
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
EH
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. Cameron Ridley, rep. United States Trustee) (Tele. appr. Jerry Seelig, Patient Care Ombudsman) (Tele. appr. David A. Wood, rep. Creditors' Committee)
Docket 920
Service proper
No opposition filed
The second and final application for compensation of Seelig+Cussigh, Consultants to the patient care ombudsman, has been set for hearing on the notice required by LBR 2016-1. Consultants seek final approval of fees in the amount of $13,635 and costs in the amount of $908, which the Court has previously allowed subject to a twenty- percent fee holdback. The Court is inclined to APPROVE, on a final basis, the total amount of fees and costs requested, including authorizing payment of the twenty- percent in fees held back, as follows:
Total Fees: $ 13,635 Total Expenses: $ 908
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):
Visiting Nurse Association of the Represented By
David M Goodrich Beth Gaschen Jennifer Vicente Ryan W Beall Steven T Gubner Jason B Komorsky
11:00 AM
EH
Docket 28
On May 17, 2018, Alfredo & Daniela Andrade (collectively, "Debtors") filed a Chapter 7 voluntary petition. On August 1, 2018, Debtors amended Schedule B to list a class action lawsuit with an "unknown value." Debtors received a discharge on August 27, 2018.
On January 10, 2021, Debtors amended their schedules, listing on Schedule B two items related to the class action lawsuit, one valued at $15,579.02 and the other, identified as "unpaid wages," valued at $7,488.50. On Schedule C, Debtors exemption the former to the extent of $10,055 and the latter at 75%.
Five days later, Debtors amended their schedules again. On Schedule B, Debtors combined the two separate entries into a single entry valued at $23,067.52. On Schedule C, Debtors exempted the entirety of the $23,067.52 pursuant to CAL. CODE CIV. P. § 703.140(b)(5) and 15 U.S.C. § 1673. On February 12, 2021, Trustee filed an objection to the exemption taken under 15 U.S.C. § 1673.
11:00 AM
11 U.S.C. § 522(b)(1) provides, in pertinent part: "[A]n individual debtor may exempt from property of the estate the property listed in either paragraph (2) or, in the alternative, paragraph (3) of this subsection." 11 U.S.C. § 522(b)(3) allows a debtor to exempt "any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition." Trustee contends that 15 U.S.C. § 1673 is not a valid source of an exemption.
As noted by the courts in Kokoszka v. Belford, 417 U.S. 642 (1974), Smith v. Frazier, 421 B.R. 513 (S.D. Ill. 2009) ("Stated simply, once the Smiths sought bankruptcy protection, the Bankruptcy Code and applicable state and federal property exemption statutes governed their rights and remedies – not the limitation on garnishment of wages contained in 15 U.S.C. § 1673), and In re Riendeau, 293 B.R. 832 (D. Vt.
2002) (finding no merit in exemption claimed under 15 U.S.C. § 1673), a debtor in bankruptcy cannot use 15 U.S.C. § 1673 to claim an exemption.
The Tenth Circuit has previously held:
The issue of whether 15 U.S.C. § 1673 provides for an exemption in this case is governed by the Supreme Court’s decision in Kokoszka. There, the Court instructed that § 1673 does not create an exemption in bankruptcy. Because the Supreme Court has instructed that § 1673 does not provide for an exemption in bankruptcy, that statutory provision has no bearing on this case.
In re Reinhart, 2011 WL 1048246 at *1 (10th Cir. 2011) (citation omitted).
11:00 AM
The Court is inclined to SUSTAIN the objection, disallowing Debtors’ exemption claimed under 15 U.S.C. § 1673.
APPEARANCES REQUIRED.
Debtor(s):
Alfredo Andrade Represented By Paul Y Lee
Joint Debtor(s):
Daniela Andrade Represented By Paul Y Lee
Trustee(s):
John P Pringle (TR) Represented By
Michelle A Marchisotto
11:00 AM
Docket 27
No opposition has been filed. Service was Improper
Notice of the hearing on the Trustee’s final report was sent out on February 18, 2021, resulting in notice being short one day. Additionally, the Court notes that Trustee entered into a settlement regarding the estate’s interest in Debtor’s vehicles, but failed to seek Court approval of the transaction. To the extent Trustee proceeded under FED.
R. BANKR. P. Rule 6004(d), such transaction still required notice to all creditors. Importantly, FED. R. BANKR. P. Rule 6004(d) only applies to sales under $2,5000. Here, the sale was for the amount of $2,500, which requires a motion and order. Therefore, Trustee having lacked authorization to engage in the transaction, and having failed to administer the estate in accordance with the Federal and Local Rules, the Court is inclined to disallow the requested compensation.
APPEARANCES REQUIRED.
Debtor(s):
Abraham Llamas Represented By Jaime A Cuevas Jr.
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
*Placed on calendar by order entered 2/26/21
Docket 16
- NONE LISTED -
Debtor(s):
Cody Michael Stowe Represented By
Gary A Quackenbush
Joint Debtor(s):
Brionna Christine Stowe Represented By
Gary A Quackenbush
Movant(s):
Cody Michael Stowe Represented By
Gary A Quackenbush
Brionna Christine Stowe Represented By
Gary A Quackenbush
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
*Debtor paid outstanding fees of $300 on 2/24/21
Docket 22
- NONE LISTED -
Debtor(s):
Kimberly Torrence Pro Se
Movant(s):
Kimberly Torrence Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:21-01002 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
MOVANT: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA Inc.)
Docket 62
Movant to apprise Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Steven Richard Bannow Represented By
Bryant C MacDonald
Joint Debtor(s):
Kristy Dale Bannow Represented By
Bryant C MacDonald
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
11:00 AM
Trustee(s):
Sheryl K Ith
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MIDFIRST BANK
EH
(Tele. appr. Paul Lee, rep. Debtor, Phillip Herrera)
Docket 39
- NONE LISTED -
Debtor(s):
Phillip Herrera Represented By Paul Y Lee
Joint Debtor(s):
Mayra Herrera Represented By Paul Y Lee
Movant(s):
MidFirst Bank Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAW OFFICES OF VAN NGHIEM
From: 12/9/20
CASE DISMISSED 11/23/20
EH
Docket 16
- NONE LISTED -
Debtor(s):
Olga M De Gonzalez Represented By Anthony P Cara
Movant(s):
Van M Nghiem Represented By Van M Nghiem
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SANTANDER CONSUMER USA INC.
EH
Docket 8
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
-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):
Rikki Nikole Sapien Represented By Salvatore Bommarito
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: HARLEY-DAVIDSON CREDIT CORP.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Santander Consumer USA Inc.)
Docket 9
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 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):
Gildardo Herrera Hernandez Represented By James P Doan
Movant(s):
Harley-Davidson Credit Corp, as Represented By
Austin P Nagel
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Requiring Status Report EH
Docket 1
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
10:00 AM
From: 3/3/21 EH
Docket 19
- NONE LISTED -
Debtor(s):
Gabriel P Den Hartog Represented By Gary J Holt
Joint Debtor(s):
Todd A Den Hartog Represented By Gary J Holt
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
Docket 73
- NONE LISTED -
Debtor(s):
Joseph F. Mark Represented By Keith Q Nguyen
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 16
- NONE LISTED -
Debtor(s):
Krystin Janai Kilgore Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
Docket 19
3/17/2021
Service proper
No opposition filed
On January 5, 2021, Lucy Arzate ("Debtor"), represented by counsel, Thinh V. Doan, filed a chapter 7 voluntary petition. On January 25, 2021, the Court dismissed Debtor retaining jurisdiction inter alia over motions related to sanctions and issues arising under 11 U.S.C. § 329.
On February 11, 2021, the United States Trustee ("UST") filed a motion for an order compelling attorney to file disclosure of compensation pursuant to 11 U.S.C. § 329 and FED. R. BANKR. P. Rule 2016.
Per the Court’s dismissal order, the Court has retained jurisdiction over matters arising under § 329.
11 U.S.C. § 329 states in pertinent part:
Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be
11:00 AM
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.
11 U.S.C. § 329(a).
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, Thinh V. Doan, to file the required statement of attorney compensation. Pending UST’s review of the disclosure of compensation, the Court continues to retain jurisdiction over matters related to 11 U.S.C. § 329.
APPEARANCES REQUIRED.
Debtor(s):
Lucy Arzate Represented By
Thinh V Doan
Movant(s):
United States Trustee (RS) Represented By
Abram Feuerstein esq
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 29
- NONE LISTED -
Debtor(s):
Kimberly Torrence Pro Se
Movant(s):
Kimberly Torrence Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
EH
*Debtor paid outstanding fees of $300 on 2/24/21
Docket 25
- NONE LISTED -
Debtor(s):
Kimberly Torrence Pro Se
Movant(s):
Kimberly Torrence Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:20-01127 Pringle v. Awad
(HOLDING DATE)
From 9/30/20,1/13/21 EH
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
2:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01032 Whitmore v. Tsirtsis et al
*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, 10/18/20,2/3/21,2/17/21
EH
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 Brad A Mokri
Christos Minoudis Represented By Brad A Mokri
Michelle A Marchisotto
2:00 PM
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#: 6:20-01103 Pavon-Arita v. Noble et al
From: 7/22/20,1/13/21 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
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
(Holding date) for OSC re Dismissal Also #9, 10, 11, 12
From: 2/10/21 EH
Docket 23
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v.
2:00 PM
McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
Debtor(s):
Donyel Betrice Johnson Represented By John D Sarai
Defendant(s):
Donyel Betrice Johnson Represented By John D Sarai
Movant(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
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
(Holding date) for OSC re: Dismissal Also #8,10,11,12
From: 2/10/21 EH
Docket 14
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v.
2:00 PM
McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
Debtor(s):
Donyel Betrice Johnson Represented By John D Sarai
Defendant(s):
Donyel Betrice Johnson Represented By John D Sarai
Movant(s):
Phillips Chiropractic, Inc. Pro Se
Plaintiff(s):
Phillips Chiropractic, Inc. Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
(Holding Date) for OSC re Dismissal Also #8, 9, 11, 12
From: 2/10/21) EH
Docket 19
The instant adversary proceeding was commenced on September 21, 2020 by Phillips Chiropractic, Inc. ("Plaintiff") against Donyel Johnson ("Defendant"). Local Rule 9011-2(a) provides:
A corporation, a partnership including a limited liability partnership, a limited liability company, or any other unincorporated association, or a trust may not file a petition or otherwise appear without counsel in any case or proceeding, except that it may file a proof of claim, file or appear in support of an application for professional compensation, or file a reaffirmation agreement, if signed by an authorized representative of the entity.
Nor can this rule be circumvented by an assignment of the claim. See, e.g., Zapata v.
2:00 PM
McHugh, 893 N.W. 2d 720 (Neb. 2017) (providing detailed analysis and collecting cases). Therefore, Plaintiff’s pro se prosecution of the instant adversary proceed is impermissible. See, e.g., Reading Int’l, Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) ("A corporation must be represented by counsel."); In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) ("A corporation can appear in a court proceeding only through an attorney at law."). Plaintiff’s pro se prosecution being impermissible, the Court intends to issue an order to show cause why the case should not be dismissed.
In light of the foregoing, the Court intends to continue: (1) Plaintiff’s motion for leave to amend the complaint; (2) Defendant’s motion to dismiss the complaint; and (3) Defendant’s motion to permit a late filing to coincide; and (4) the status conference to coincide with a hearing on the Court’s order to show cause.
APPEARANCES REQUIRED.
Debtor(s):
Donyel Betrice Johnson Represented By John D Sarai
Defendant(s):
Donyel Betrice Johnson Represented By John D Sarai
Movant(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
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
(Holding date) for OSC re: Dismissal Also #8, 9, 10, 12
*Another Summons issued per Plaintiff request on 10/14/20
*Another Summons issued per Plaintif request on 12/7/20 From: 11/25/20,12/2/20,2/10/21
EH
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
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01163 Phillips Chiropractic, Inc. v. Johnson
Also #8, 9, 10, 11
EH
Docket 0
- 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
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor, Tracy Crooks)
Docket 137
- NONE LISTED -
Debtor(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Movant(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 62
- NONE LISTED -
Debtor(s):
Kenneth L Salser Represented By Michael Smith Craig K Streed Sundee M Teeple
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Robeert Firth, rep. Debtors, Richard and Diana Alvarez)
Docket 42
- NONE LISTED -
Debtor(s):
Richard Alan Alvarez Represented By Robert L Firth
Joint Debtor(s):
Diana Marie Alvarez Represented By Robert L Firth
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #5
From: 2/4/21,2/18/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Summer Shaw, rep. Debtors, Evan and Elton Parker-Calderon)
Docket 48
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By
11:00 AM
Trustee(s):
Summer M Shaw Summer M Shaw Summer M Shaw
Rod Danielson (TR) Pro Se
11:00 AM
Also #4 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Summer Shaw, rep. Debtors, Evan and Elton Parker-Calderon)
Docket 58
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By
11:00 AM
Trustee(s):
Summer M Shaw Summer M Shaw Summer M Shaw
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. David Lozano, rep. Debtor, Jose Vasquez Javier) (Tele. appr. Jose Vazquez, Debtor)
Docket 0
- NONE LISTED -
Debtor(s):
Jose M Vazquez Javier Represented By David Lozano
Trustee(s):
Rod (MH) Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Natalie Alvarado, rep. Debtor, Richard De Aragon)
Docket 0
- NONE LISTED -
Debtor(s):
Richard De Aragon Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 24
- NONE LISTED -
Debtor(s):
Howard Edward Terrell Represented By
Arete R Kostopoulos
Movant(s):
United States Trustee (RS) Represented By Cameron C Ridley
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Howard Edward Terrell Represented By
Arete R Kostopoulos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Juana Flordeliza Phillips Represented By Stephen L Burton
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Harold Salazar Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 47
- NONE LISTED -
Debtor(s):
Richard S. Gomez Represented By
James D. Hornbuckle
Joint Debtor(s):
Cara M. Gomez Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Liliana Martinez Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #14.1 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 42
- NONE LISTED -
Debtor(s):
Michael Rudy Holguin Represented By Daniel King
Joint Debtor(s):
Juana Patricia Holguin Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #14 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 45
- NONE LISTED -
Debtor(s):
Michael Rudy Holguin Represented By Daniel King
Joint Debtor(s):
Juana Patricia Holguin Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 121
- NONE LISTED -
Debtor(s):
Tanyua Alicia Gates-Holmes Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Elida Soto Represented By
William G Cort
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 34
- NONE LISTED -
Debtor(s):
David Patrick Hale Represented By Gary S Saunders
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Sundee Teeple, rep. Debtors, Jonathon and Jacqueline Stoner)
Docket 73
- 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):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 79
- NONE LISTED -
Debtor(s):
Sherry L. Stokes Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 45
- NONE LISTED -
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 55
- 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
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. M. Wayne Tucker, rep. Debtor, Christopher Dennis)
Docket 30
- NONE LISTED -
Debtor(s):
Christopher Bryan Dennis Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Kevin Tang, rep. Debtor, Edwin Briones and Gabriela Sandez)
Docket 67
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Todd Turoci, rep. Debtor, Angela Atou)
Docket 59
- NONE LISTED -
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 69
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 70
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Justin Harelik, rep. Debtor, Regina Louis Gaines)
Docket 23
- NONE LISTED -
Debtor(s):
Reggina Louise Gaines Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
(Tele. appr. Cynthia Levy)
Docket 6
Debtor(s):
Cynthia Lynne Levy Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
12:00 PM
Docket 6
Debtor(s):
Daniel Mark Rondeau Pro Se
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/Cross Defendant, Continental Capital)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Defendant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff Morschauser)
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
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
EH
(Tele. appr. Cara Hagan, rep. Defendant/Cross Defendant, Continental Capital)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Defendant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff Morschauser)
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
1:00 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
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/Cross Defendant, Continental Capital)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Defendant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff Morschauser)
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
1:00 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
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
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, 11/10/20,12/9/20,12/22/20
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
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
1:00 PM
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
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, 11/10/20,12/9/20,12/22/20
EH
(Tele. appr. Cara Hagan, rep. Defendant/Cross Defendant, Continental Capital)
(Tele. appr. Lawrence Kuhlman, rep. Defendant/Cross Defendant, Jesse Bojorquez)
(Tele. appr. Reid Winthrop, rep. Plaintiff Morschauser)
Docket 29
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
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC
EH
(Tele. appr. Jennifer Wong, rep. creditor, Nationstar Mortgage LLC, d/b/a Mr. Cooper)
Docket 78
The Court, having reviewed and considered the motion, finds cause exists where Debtor has missed five mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 12;
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
11:00 AM
Debtor(s):
Deborah L Tafolla Represented By Christopher J Langley
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Angie M Marth Christopher Giacinto Jacky Wang
Nancy L Lee Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
(Tele. appr. Michael Franco, rep, Debtor, Ruby Lee Frezier)
Docket 134
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Movant(s):
U.S. Bank Trust National Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4
MOVANT: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. rep. creditor, Santander Consumer USA Inc.)
Docket 57
The Court, finding cause where Debtor failed to make four car payments to Movant, 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.
11:00 AM
Debtor(s):
Javier Ortega Represented By
Alon Darvish - SUSPENDED BK - Ghada Helena Philips
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3 From: 3/2/21
MOVANT: NATIONSTAR MORTGAGE LLC
EH
(Tele. appr. Dane Exnowski, rep. creditor, Nationstar Mortgage LLC)
Docket 52
- NONE LISTED -
Debtor(s):
Javier Ortega Represented By
Alon Darvish - SUSPENDED BK - Ghada Helena Philips
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Melissa Licker Dane W Exnowski John D Schlotter
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/9/21
MOVANT: ROSETTA CANYON COMMUNITY ASSOCIATION
EH
Docket 46
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed eleven assessment payments. Accordingly, the Court is inclined to:
-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.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
11:00 AM
Debtor(s):
Jose Antonio Contreras Represented By A Mina Tran
Joint Debtor(s):
Mayra Lorena Contreras Represented By A Mina Tran
Movant(s):
Rosetta Canyon Community Represented By Erin A Maloney
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/9/21
MOVANT: WILMINGTON TRUST NATIONAL ASSOCIATION
EH
(Tele. appr. Sean Ferry, rep. creditor, Ocwen Loan Servicing)
Docket 51
The Court notes that Movant has not provided any evidence establishing that Debtor lacks equity in the property in support of its request for relief from stay pursuant to § 362(d)(2). Notwithstanding, having reviewed and considered the motion, no opposition having been filed, the Court finds cause exists where Debtor has missed three mortgage payments. Accordingly, the Court is inclined to:
-DENY relief from stay pursuant to 11 U.S.C. § 362(d)(2);
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request under ¶ 13 as MOOT;
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or
11:00 AM
written opposition is presented at the hearing, the hearing may be continued.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
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
- NONE LISTED -
Debtor(s):
Franklin Rojas Pro Se
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 67
- NONE LISTED -
Debtor(s):
Christopher Monroe Represented By Paul Y Lee
Joint Debtor(s):
Aysheh Spicer Represented By Paul Y Lee
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LENDMARK FINANCIAL SERVICES, LLC
EH
(Tele. appr. James MacLeod, rep. creditor, Lendmark Financial Services LLC)
Docket 27
The Court notes that Movant has not provided any evidence establishing that Debtor lacks equity in the property in support of its request for relief from stay pursuant to § 362(d)(2). Notwithstanding, having reviewed and considered the motion, no opposition having been filed, the Court finds cause exists where Debtor missed four car payments. Accordingly, the Court is inclined to:
-DENY relief from stay pursuant to 11 U.S.C. § 362(d)(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):
Efren Valenzuela Represented By
11:00 AM
Movant(s):
Edgar P Lombera
LENDMARK FINANCIAL Represented By Donald T Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota Motor Credit)
Docket 11
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):
Karen Arely Santillan Represented By Paul Y Lee
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: SANTANDER CONSUMER USA INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor Santander Consumer USA Inc.)
Docket 10
In relevant part, 11 U.S.C. § 362 states:
(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
11:00 AM
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor’s statement of intention selects an option to retain the property and continue making payments based on the pre-bankruptcy loan agreement. This option is known as "ride-through" and is not available in this circuit, and as such Debtor cannot properly select it under the statute. See In re Dumont, 581 F.3d 1104 (2009). The Debtor was required to select to either surrender, redeem the property, or to enter a reaffirmation agreement. See 11 U.S.C. § 362(h)(1)(A). As the thirty-day deadline for filing or amending the statement of intention was February 28, 2021, the automatic stay at to the Hyundai Elantra has terminated as a matter of law. See 11 U.S.C. § 521(a)(2)(A). Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Angelina Vasquez Represented By Gary S Saunders
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: LOGIX FEDERAL CREDIT UNION
EH
(Tele. appr. Karel Rocha, rep. creditor, Logix Federal Credit Union) (Tele. appr. Qais Zafari, rep. Debtor, John Soto, Jr.)
Docket 8
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor submitted a blank statement of intention. 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 thirty-day deadline for filing or amending the statement of intention has passed on March 3, 2021 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):
John Molina Soto Jr Represented By Qais Zafari
Movant(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
Also #14
MOVANT: BANK OF THE WEST
EH
(Tele. appr. Mary Tang, rep. creditor, Bank of the West)
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 WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Elizabeth Jean Burnett Pro Se
11:00 AM
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
Also #13
MOVANT: BANK OF THE WEST
EH
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):
Elizabeth Jean Burnett Pro Se
Movant(s):
BANK OF THE WEST Represented By
11:00 AM
Trustee(s):
Mary Ellmann Tang
Howard B Grobstein (TR) Pro Se
11:00 AM
Also #16
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep, creditor, Nissan Motor Acceptance Corp.)
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):
Carlos Marquez Represented By Jaime A Cuevas Jr.
11:00 AM
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Also #15
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep, creditor, Nissan Motor Acceptance Corp.)
Docket 9
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):
Carlos Marquez Represented By Jaime A Cuevas Jr.
11:00 AM
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Also #18-24
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, 9/30/20,1/12/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 7
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
From: 11/8/16, 12/6/16, 1/10/17, 3/7/17,4/4/17, 4/25/17, 6/27/17, 7/11/17, 9/12/17, 11/14/17, 11/28/17, 1/30/18, 4/10/18, 4/24/18, 6/26/18, 9/25/18,
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, 9/30/20, 1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
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
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 528
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
(HOLDING DATE)
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, 9/28/20,1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
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
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,
(HOLDING DATE)
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, 9/30/20/1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 1
- NONE LISTED -
2:00 PM
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
Recovery of money/property - 548 fraudulent transfer
(HOLDING DATE)
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, 9/30/20,1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn 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, 9/30/20,1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
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 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,
9/30/20,1/13/21
EH
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay, rep. Plaintiff, Cambridge Medical Funding Group II LLC)
(Tele. appr. Mark Horoupian, rep. trustee, David Goodrich) (Tele. appr. Marc Lieberman, rep. Defendant, John Larson)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Defendant(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
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, 11/17/20
EH
(Tele. appr. David Goodrich, rep. Debtor, Visiting Nurse Association)
(Tele. appr. Elan Levey, rep. creditor, Department of Health and Human Services)
(Tele appr. Cameron Ridley, rep. United States Trustee)
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: 9/29/20, 11/24/20,12/1/20 EH
(Tele. appr. Lewis Adelson, rep. creditor, Tapatio Foods LLC) (Tele. appr. Caroline Djang, rep. trustee, Caroline Djang) (Tele. appr. Crystle Lindsey, rep. Debtor, Fasttrak Food LLC)
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 (TR) Pro Se
2:00 PM
EH
(Tele. appr. Ali Matin, rep. United States Trustee)
Docket 51
3/30/2021
On December 8, 2020, Raman Enterprises LLC ("Debtor") filed a Chapter 11 voluntary petition. On December 23, 2020, Debtor filed an application to employ the Law Office of Donald W. Reid ("Counsel"). Payments to Counsel were proposed on a monthly basis. The Office of the United States Trustee ("UST") filed a limited objection to the proposed payment schedule.
On January 19, 2021, to address the UST’s concerns, Counsel proposed to apply for fees through the regular procedures under 11 U.S.C. §§ 330, 331 with the exception that Counsel is permitted to apply for fees within 60 days of the petition date. In addition, the sole member, Dr. Daluvoy of the Debtor would deposit the necessary funds into the DIP account. On January 26, 2021, the Court entered an order granting the Firm’s employment.
On February 5, 2021, the Court approved Debtor’s application to employ a Broker to market real properties located in Barstow and Riverside, the only two assets in Debtor’s estate.
2:00 PM
On March 9, 2021, the Firm filed its first interim fee application, accompanied by Dr. Daluvoy’s declaration of non-opposition, requesting $15,109.80 in fees and expenses to cover the period of December 8, 2020 through February 23, 2021. On March 18, 2021, the Court entered an order approving a stipulation resolving the UST potential objection to Counsel’s fee application requiring Counsel to file revised timesheets with the Court disaggregating time entries by March 23, 2021 and lower requested fees and expenses by $870 to $14,239.80.
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
2:00 PM
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 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
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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 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 Counsel has revised the fee application to address the UST’s objections, and no other party has opposed, 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;
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
$13,920 in fees and $319.80 in costs.
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):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Movant(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
2:00 PM
(OST entered 3/24/21) EH
(Tele. appr. Christopher Demint, rep. Client, DW Trim, Inc.) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
(Tele. appr. Marshall Hogan, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Robert Kinas, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Elan Levey, rep. creditor,Claimant, Small Business Administration)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 51
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
Also #28, 30 (Final hearing) From: 2/18/21 EH
(Tele. appr. Christopher Demint, rep. Client, DW Trim, Inc.) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
(Tele. appr. Marshall Hogan, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Robert Kinas, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Elan Levey, rep. creditor,Claimant, Small Business Administration)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 2
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By
2:00 PM
Movant(s):
Steven R Fox
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
Also #28, 29 From: 3/16/21 EH
(Tele. appr. Christopher Demint, rep. Client, DW Trim, Inc.) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
(Tele. appr. Marshall Hogan, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Robert Kinas, rep. client, William Lyon Homes, Inc. & RSI Communities, LLC) - LISTEN ONLY
(Tele. appr. Elan Levey, rep. creditor,Claimant, Small Business Administration)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
11:00 AM
(Tele. appr. John Pringle, chapter 7 trustee)
Docket 35
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: $ 1,288.69 Trustee Expenses: $ 288.40
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):
Elizabeth Chacon Represented By Omar Zambrano
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
(Tele. appr. Robert Goe, rep. creditor, Juddy Olivares)
Docket 239
3/31/2021
On February 26, 2016, Sam Daniel ("S. Dason") and Greeta Sam Dason ("G. Dason") (collectively, "Debtors") filed a Chapter 7 voluntary petition for relief. In Schedule A/B, Debtors listed an interest in their family residence, 22780 Vista Grande Way, Grand Terrace, California ("Property") and claimed a $100,000 homestead exemption. On July 18, 2016, Debtors transferred their interest in the Property to the Dason Trust.
Prior to filing the Debtors’ bankruptcy, Juddy Olivares ("Olivares") had filed a sexual harassment complaint against S. Dason in state court. On February 26, 2016, the state court issued its judgment in the amount of $1,724,996.34 against S. Dason. On August 22, 2016, Olivares filed an adversary action seeking that the sexual harassment judgment be declared nondischargeable. On December 19, 2018, S. Dason stipulated to entry of judgment in the amount of $500,000 in the nondischargeability action. Pursuant to a settlement agreement, S. Dason would pay down the judgment according to a payment schedule. Because of Covid-19, S. Dason states he was unable to keep up with the payments.
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On August 22, 2018, Trustee filed a 9019 compromise motion seeking to abandon the estate’s interest in the Property to the Debtors in exchange for G. Dason’s payment of
$20,000. The Court approved the compromise pursuant to order entered on October 22, 2018. On November 16, 2018, Debtors, as trustees of the Dason Trust, transferred the Property out of the trust to G. Dason.
Debtors received their discharge on September 2, 2020.
On January 21, 2021, Olivares filed a complaint in Superior Court of California, County of San Bernardino to set aside fraudulent transfer of the Property based on actual fraud and for constructive trust. Her attorney in this action is Eric Panitz.
On March 9, 2021, Debtors filed the instant motion for order of contempt and judgment against Olivares and Eric Panitz arguing that the filing of the complaint violated the discharge order. Olivares filed an opposition on March 16, 2021.
Local Bankruptcy ("LBR") 9020-1 governs contempt proceedings. LBR 9020-1(a)-(c) states:
General. Unless otherwise ordered by the court, contempt proceedings are initiated by filing a motion that conforms with LBR 9013-1 and a lodged order to show cause. Cause must be shown by filing a written explanation why the party should not be held in contempt and by appearing at the hearing.
Motion. The motion must be served on the responding party which shall have 7 days
to object to the issuance of the order.
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Proposed Order to Explain in Writing and Appear at Hearing
The proposed order must clearly apprise the party to whom it is to be directed that such party must show cause by filing a written explanation, if there is an explanation, why that party should not be held in contempt for the allegedly contemptuous conduct and by appearing at the hearing.
In the proposed order:
The allegedly contemptuous conduct must be clearly identified and not just by reference to the content of the motion.
The possible sanctions and grounds for sanctions must be clearly identified.
The proposed order must have blank spaces in which the court may fill in the
date, time, and location of the hearing, and the dates by which the written explanation must be filed and served.
Here, Debtors have not complied with LBR 9020-1 by failing to first apply to the Court for an order to show cause ("OSC"), including by not lodging a proposed OSC, and thus failing to provide Olivares and Panitz with the opportunity to respond and oppose the issuance of an OSC. The proper procedure having not been followed, the Court cannot issue an order of contempt.
In accordance with the foregoing, the Court is inclined to DENY Debtors’ motion.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
Movant(s):
Sam Daniel Dason Represented By Robert G Uriarte Robert G Uriarte
Greeta Sam Dason Represented By Robert G Uriarte
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
11:00 AM
Docket 124
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
11:00 AM
(Tele. appr. Robert Goe, rep. trustee, Steven Speier)
Docket 112
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee, and Counsel and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 6,250 Trustee Expenses: $ 71.40
Attorney Fees: $ 38,044.66 Attorney Expenses: $ 829.11
Accountant Fees: $ 7,210.19 Accountant Expenses: $ 580.31
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.
11:00 AM
Debtor(s):
Desert Ice Castle, LLC Represented By Paul M Stoddard
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
Thomas J Eastmond
11:00 AM
(Tele. appr. Melissa Davis Lowe, rep. trustee, Howard Grobstein)
Docket 69
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee, and Counsel and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 3,709.40 Trustee Expenses: $ 0.00
Attorney Fees: $ 16,453.50 Attorney Expenses: $ 1,118.20
Accountant Fees: $ 2,600.50 Accountant Expenses: $ 58.20
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):
Ralph D. Winn Represented By Douglas A Plazak
11:00 AM
Joint Debtor(s):
Stacey A. Winn Represented By Douglas A Plazak
Trustee(s):
Howard B Grobstein (TR) Represented By Leonard M Shulman Melissa Davis Lowe
11:00 AM
EH
(Tele. appr. Matthew Kennedy, rep. trustee, Karl Anderson)
Docket 44
Service proper
No opposition filed
On February 19, 2020, Nelly Guadalup Seneff ("Debtor") filed a Chapter 7 voluntary petition. On June 1, 2020, Debtor received a discharge. In her petition, Schedule A/B, Debtor listed an interest in the real property located at 8482 Running Gait Lane, Riverside, California ("Property"). Per Schedule C, Debtor claimed a homestead exemption of $175,000 in the Property. The following liens encumber the Property:
Ditech Financial, LLC in the amount of $232,335; 2) HERO in the amount of
$31,491.00; 3) Midland Funding, LLC in the amount of $5,210.38.
Trustee and Debtor dispute the fair market value of the Property; Trustee contends it is worth between $500,000 and $515,000, but Debtor contends its value is only
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$424,183. Debtor has already paid $14,000 for the interest of Trustee in the property. Trustee and Debtor seek to enter a settlement agreement on this dispute.
On March 8, 2021, Trustee filed the instant motion for order approving the settlement with Debtor and authorizing the private sale of the Property subject to liens and sent out a notice of the sale of all the Trustee’s right, title, and interest in the Property ("Compromise motion"). The purchase price will be $189,000 consisting of the
$14,000 payment and $175,000 credit towards the Debtor’s homestead exemption.
Trustee submits that with the $14,000 payment the estate has sufficient funds to pay all administrative expenses and the one timely filed, allowed unsecured claim of
$4,346.98 of Midland Funding, LLC. Approving the private sale and the settlement agreement would avoid additional costs related to the dispute and marketing of the Property. Additionally, Trustee believes that the costs incurred from marketing the Property and employing a broker would result in a smaller recovery for the estate than the proposed private sale.
Settlement Agreement
FED. R. BANKR. P. Rule 9019(a) states: "On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct." The Court may grant approval if it determines that the compromise is "fair and equitable." See In re Berkeley Delaware Court, LLC, 834 F.3d 1036, 1039 (9th Cir. 2016). In determining whether the compromise is fair and equitable, the Court applies a four-factor test. See In re DiCostanzo, 399 Fed. Appx. 307, 308 (9th Cir. 2010). The test was originally outlined in In re A & C Props., and provides for consideration of:
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(a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it;
(d) the paramount interest of the creditors and a proper deference to their reasonable views in the premises.
784 F.2d 1377, 1381 (9th Cir. 1986) (quotation omitted). "The bankruptcy court has great latitude in approving compromise agreements." In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988). Typically, "a compromise should be approved unless it falls below the lowest point in the range of reasonableness." In re Art & Architecture Books of the 21st Century, 2016 WL 1118742 at *25 (Bankr. C.D. Cal. 2016) (quotation omitted).
Because the settlement agreement would provide proceeds to pay all allowed, unsecured claims in full, and in the absence of any opposition, the Court concludes that the A&C factors weigh in favor of approval of the settlement to allow the private sale of the Property to Debtor. Because creditors will be paid in full, the settlement is in the best interest of the estate, and there does not appear to be any plausible benefit of continuing to dispute the value of the Property or sell it publicly, particularly where the net proceeds may result in a lesser recovery than the settlement.
Private Sale Pursuant to Settlement
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 Partners, 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.
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830, 841 (Bankr. C.D. Cal.).
As the Court stated above, the settlement will satisfy the allowed unsecured claims in the estate. Notice of the sale having been posted and served, there being no opposition, and the settlement appearing to be the best recovery for the state, the Court deems the compromise reasonable.
The Court is inclined to GRANT the Compromise motion, allowing the sale based on the terms set forth in the settlement agreement.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Nelly Guadalupe Seneff Represented By Todd L Turoci
Movant(s):
Karl T Anderson (TR) Represented By Robert A Hessling
Trustee(s):
Karl T Anderson (TR) Represented By Robert A Hessling
11:00 AM
EH
(Tele. appr. Ori Blumenfeld, rep. trustee, Howard Grobstein)
Docket 46
3/31/2021
On July 20, 2020, Fury Investments, Inc. fdba Zelda's Nightclub ("Debtor") filed a Chapter 7 voluntary petition for relief. On September 1, 2020, movant J.J.D.C. filed a motion for relief from stay to pursue an action for wrongful death in a non-bankruptcy forum. The Court granted the motion pursuant to order entered on November 5, 2020.
On February 26, 2021, Trustee filed the instant motion seeking the Court estimate unliquidated Claim 2 filed by J.J.D.C., a minor ("Claimant") in the amount of
$20,000,000. The basis for Claim 2 is "Wrongful death of Noah Davison." Trustee states there is no evidence provided in support of this amount. The trial on wrongful death, which would determine the claim amount, will not occur until 2022. Trustee submits that the Court should liquidate Claim 2, absent evidence from the Claimant, at $1,000,000, an amount Trustee estimates Claim 2 is worth based on conversations with personal injury attorneys.
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11 U.S.C. § 502(c) provides in relevant part:
There shall be estimated for purpose of allowance under this section--
any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case; or
11 U.S.C. § 502(c)(1). The language of Section 502(c) is mandatory, not permissive, and imposes upon the Court an affirmative duty to estimate any unliquidated claim where the actual liquidation of the claim would unduly delay closing of the case. See In re Nova Real Estate Investment Trust, 23 B.R. 62, 65, 7 C.B.C.2d 87 (Bkrtcy.E.D.Va.1982); See In re Pizza of Hawaii, Inc., 40 B.R. 1014, 1017 (Bankr. D. Haw. 1984), aff’d, 761 F.2d 1374 (9th Cir. 1985) ("Importantly, §502(c)’s language is mandatory, not permissive, and creates in the bankruptcy court an affirmative duty to estimate any unliquidated claim."). Congress intended that contingent or unliquidated claims be estimated by the bankruptcy judges under Section 502(c), using whatever method is best suited to the particular circumstances. See In re Aspen Limousine Serv., Inc., 193 B.R. 325, 337 (D. Colo. 1996; In re Curtis, 40 B.R. 795, 801 at n. 7
(Bankr. D. Utah 1984); Bittner v. Borne Chemical Co., Inc., 691 F.2d 134, 135 (3d Cir.1982). "Although the court is bound by the legal rules governing the ultimate value of the claim, there are no other limitations on the court's authority to estimate claims." In re Aspen Limousine Serv., Inc., 193 B.R. at 337. The Ninth Circuit has explained that a debt is liquidated if it is capable of "ready determination and precision in computation of the amount due." In re Fostvedt, 823 F.2d 305, 306 (9th Cir. 1987); In re Nicholes, 184 B.R. 82, 89 (9th Cir. B.A.P. 1995). The test for "ready determination" is "whether the amount due is fixed or certain or otherwise ascertainable by reference to an agreement or by simple computation." In re Nicholes, 184 B.R. at 89.
Although the Court notes that the Claim 2 is unliquidated, as the action for wrongful death is currently pending, the evidence provided by Trustee to estimate Claim 2 at
$1,000,000 is insufficient. Trustee has not included adequate detail regarding his conversations with attorneys in the personal injury field, nor has evidence been provided specifically supporting the conclusions of such personal injury attorneys.
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In accordance with the foregoing, the Court is inclined to CONTINUE the hearing for Trustee to supplement his motion to address the issues noted above. The Court also questions the benefit of the motion when it appears only to increase administrative costs without any material change to payment to creditors.
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
Docket 51
- NONE LISTED -
Debtor(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Movant(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Trustee(s):
Lynda T. Bui (TR) Represented By Brandon J Iskander
11:00 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
Maria Elvia Hernandez Represented By Christopher J Langley Christopher J Langley Christopher J Langley Christopher J Langley
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
11:00 AM
Adv#: 6:20-01185 Anderson v. Oceana Gwen, LLC et al
(special time set)
EH
(Tele. appr. Tinho Mang, rep. trustee, Karl Anderson)
Docket 1
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Defendant(s):
Oceana Gwen, LLC Pro Se
EMMANUEL ANDRADE Pro Se
Plaintiff(s):
Karl T. Anderson Represented By Tinho Mang
Trustee(s):
Karl T Anderson (TR) Represented By
11:00 AM
Tinho Mang Richard A Marshack Chad V Haes
11:00 AM
(Tele. appr. Brandon Iskander, rep. trustee, Todd Frealy) (Tele. appr. Sundee Teeple, rep, Debtor, Anna Gonzales)
Docket 20
- NONE LISTED -
Debtor(s):
Anna M Gonzales Represented By Sundee M Teeple
Movant(s):
Anna M Gonzales Represented By Sundee M Teeple
Trustee(s):
Todd A. Frealy (TR) Represented By Brandon J Iskander
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
(Tele. appr. Charles Schrader, plaintiff)
Docket 427
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
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#: 6:19-01177 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, 1/24/20, 12/1/20,1/20/21
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
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
From: 10/28/20) EH
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#: 6:20-01171 Daff (TR) v. Karadas
(Tele. appr. Plaintiff, Charles Daff)
Docket 34
- NONE LISTED -
Debtor(s):
Sean Karadas Represented By Todd L Turoci
Defendant(s):
Sean Karadas Pro Se
Movant(s):
Charles W Daff (TR) Pro Se
Charles W Daff (TR) 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#: 6:20-01047 Karl T. Anderson, Chapter 7 Trustee v. Olaya et al
From: 7/1/20, 10/28/20 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
2:00 PM
Trustee(s):
Misty A Perry Isaacson
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
(Holding date)
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, 10/14/20,12/2/20
EH
(Tele. appr. Rolbert Goe, rep. Debtor, Vance Johnson)
(Tele. appr. Melissa Hayward, rep. Planitiff, Bankers Healthcare Group, LLC)
(Tele. appr. Todd Turoci, rep. Plaintiff, Bankers Healthcare Group, LLC)
Docket 1
4/15/20
TENTATIVE RULING
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.
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
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#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
EH
(Tele. appr. Daren Schlecter, rep. Plaintiff Canyon Springs Enterprises) (Tele. appr. Todd Turoci, rep, Defendant, Marc Anthony Capoccia)
Docket 50
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Movant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Matthew Cotter Represented By
2:00 PM
Trustee(s):
R Gibson Pagter Jr. Misty A Perry Isaacson
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
Docket 5
- NONE LISTED -
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Movant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
2:00 PM
Matthew Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 93
- NONE LISTED -
Debtor(s):
Gabriel Francisco Nieves Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Robert Firth, rep. Debtor, Richard and Diana Alvarez)
Docket 42
- NONE LISTED -
Debtor(s):
Richard Alan Alvarez Represented By Robert L Firth
Joint Debtor(s):
Diana Marie Alvarez Represented By Robert L Firth
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 2/4/21,2/18/21, 3/18/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Summer Shaw, rep. Debtor, Evan and Elton Parker-Calderon)
Docket 48
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By
11:00 AM
Trustee(s):
Summer M Shaw Summer M Shaw Summer M Shaw
Rod Danielson (TR) Pro Se
11:00 AM
Also EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Summer Shaw, rep. Debtors, Evan and Elton Parker-Calderon)
Docket 58
- NONE LISTED -
Debtor(s):
M Evan Parker-Calderon Represented By Summer M Shaw
Joint Debtor(s):
Elton Parker-Calderon Represented By Summer M Shaw
Movant(s):
M Evan Parker-Calderon Represented By Summer M Shaw Summer M Shaw Summer M Shaw Summer M Shaw
Elton Parker-Calderon Represented By
11:00 AM
Trustee(s):
Summer M Shaw Summer M Shaw Summer M Shaw
Rod Danielson (TR) Pro Se
11:00 AM
Docket 44
- 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
EH
*Placed on calendar by order entered 3/2/21
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jason Boyer, rep. Debtor, Loi Phuoc Au)
Docket 41
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Elvert Zarate Represented By
Todd L Turoci
Joint Debtor(s):
Monica Zarate Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Dane Exnowski, rep, U.S. Bank Trust National Association) (Tele. appr. Summer Shaw, rep Debtor, Sylvia Fairfax)
Docket 0
- NONE LISTED -
Debtor(s):
Sylvia Delana Fairfax Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Kristin Zilberstein, rep. creditor, Wilmington Savings Fund Society FSB)
Docket 0
- NONE LISTED -
Debtor(s):
Sean Phillip Coy Represented By Stephen L Burton
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Lalo Salcida Belmares Represented By Jeffrey N Wishman
Joint Debtor(s):
Roxanna Noriega Belmares Represented By Jeffrey N Wishman
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Fausto Maldonado Pro Se
Trustee(s):
Rod (MH) Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Julie Villalobos, rep. Debtor, Steven Owen)
Docket 0
- NONE LISTED -
Debtor(s):
Steven Edward Owen Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Donna Travis, rep. Debtor, Crucita Cruz)
Docket 14
On February 16, 2021, Crucita Cruz ("Debtor") filed a Chapter 13 voluntary petition. On February 18, 2021, Cavalry SPV I, LLC ("Creditor") filed a proof of claim for an unsecured claim in the amount of $17,761.95 ("Claim 1").
On March 1, 2021, Debtor filed an objection to Claim 1; Debtor’s claim objection was amended on March 3, 2021. Debtor argues that Claim 1 is barred by the statute of limitations because the charge off date was on July 9, 2008.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in
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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.
FED. R. BANKR. P. Rule 3007(1)(a) requires that a claim objection be "served at least 30 days before any scheduled hearing." Here, Debtor did not service a notice of the hearing until March 3, 2021, less than thirty days before the scheduled hearing.
Debtor having failed to comply with the applicable, binding federal rule, the Court is
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inclined to CONTINUE the matter to May 13, 2021, for proper notice to be given.
APPEARANCES REQUIRED.
Debtor(s):
Crucita Cruz Cruz Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 149
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 86
- NONE LISTED -
Debtor(s):
Gregory Dwight Vit Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 67
- NONE LISTED -
Debtor(s):
Isabel Duran Garcia Represented By Robert J Spitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 133
- NONE LISTED -
Debtor(s):
Ruby Lee Frazier Represented By Michael D Franco
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 99
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 93
- NONE LISTED -
Debtor(s):
Xavier C. Luna Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 73
- 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):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 45
- NONE LISTED -
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 30
- NONE LISTED -
Debtor(s):
Christopher Bryan Dennis Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Kevin Tang, rep. Debtor, Edwin Briones and Gabriela Sandez)
Docket 67
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Terrence Fantauzzi, rep. Debtor, Larry Smith)
Docket 49
- NONE LISTED -
Debtor(s):
Larry W. Smith Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 70
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 75
- NONE LISTED -
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- 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
11:01 AM
EH
Docket 23
- NONE LISTED -
Debtor(s):
Reggina Louise Gaines Represented By
D Justin Harelik
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Kenneth Davis Represented By Andy Nguyen
Joint Debtor(s):
Shirley Davis Represented By Andy Nguyen
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, Irene Arias)
Docket 74
- NONE LISTED -
Debtor(s):
Irene Elizabeth Arias Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 35
- NONE LISTED -
Debtor(s):
Angela Helen Arias Represented By Steven A Alpert
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, George and Elizabeth Maret)
Docket 64
- NONE LISTED -
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Julie Villalobos, rep. Debtor, Allan Ramos)
Docket 72
- NONE LISTED -
Debtor(s):
Allan Omar Ramos Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
12:30 PM
(Tele. appr. Margarita Lopez)
Docket 6
- NONE LISTED -
Debtor(s):
Margarita Angelica Lopez Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
From: 3/2/21
MOVANT: SELECT PORTFOLIO SERVICING INC.
EH
Docket 90
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 12/15/20,1/19/21, 3/2/21 EH
Docket 72
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
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 1/5/21 EH
Docket 6
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Sevan Gorginian
11:00 AM
(Holding Date) Status Conference for OSC
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20,2/10,21
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 0
- 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
12:30 PM
EH
(Tele appr. Robert Goe, rep. creditor, Juddy Olivares) (Tele. appr. Robert Uriarte, rep. Debtor, Sam Dason)
Docket 239
4/7/2021
On February 26, 2016, Sam and Greeta Dason (collectively “Dasons” or “Debtors”, individually, “Sam Dason” and “Greeta Dason”) commenced a joint Chapter 7 bankruptcy case. By order entered on October 22, 2018, the court approved a settlement agreement between the Chapter 7 Trustee and the Dasons pursuant to which, in exchange for payment, the Trustee abandoned the estates’ interest in certain real property located in Grand Terrace, California (“Property”). After deemed abandonment of the Property pursuant to the terms of the settlement agreement, on or about November 16, 2018, the Debtors recorded an interspousal quitclaim deed (“Transfer”), transferring title to the Property to Greeta Dason as her separate property. It is conceded by Debtors that the Property was community property prior to the Transfer.
On December 19, 2018, this court entered a stipulated nondischargeability judgment (“Judgment”) in favor of Juddy Olivares (“Olivares”) against Sam Dason. On January 21, 2021, Olivares filed a state court complaint (“Complaint”) seeking to set aside the Transfer as a fraudulent transfer. By her motion, Greeta Dason asks the Court to hold Olivares in contempt for violating her discharge injunction by filing the Complaint.
The determination of whether the Complaint violates Greeta Dason’s discharge injunction involves what is essentially a two-step process. Since the Property was concededly
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community property at all relevant times prior to the Transfer, the first inquiry is whether Olivares is somehow barred by Greeta Dason’s discharge injunction from recovering against Debtors’ community property on account of the Judgment, as Greeta Dason asserts in her motion. This is because if Olivares is barred by Greeta Dason’s discharge injunction from recovering against the Property while it was community property, then the Transfer to Greeta Dason as her separate property would presumably not expand Olivares rights of recovery, and the Complaint would additionally violate Greeta Dason’s discharge injunction. Assuming that Olivares is not barred by the discharge injunction from recovering against community property on account of the Judgment, the second inquiry is whether the Complaint contains a claim barred by the discharge injunction.
The Motion is Procedurally Improper
As noted in the prior tentative ruling, the motion is procedurally improper for failure to comply with the
local bankruptcy rules in seeking a contempt finding.
Is Olivares Barred by the Discharge Injunction from Recovering from Community Property on Account of the Judgment
Is the Property Community Property as of the Petition Date
As an initial matter, the Debtors’ schedules indicate that both Debtors had an interest in the Property as of the petition date, and Greeta Dason concedes in her motion that the Property was community property immediately before the Transfer. The Court thus finds the Property was community property at all relevant times for purposes of this analysis.
Is the Judgment a Community Claim
Under the Bankruptcy Code, the term “community claim” means a claim that arose before the commencement of the case concerning the debtor for which property of the kind specified in section 541(a)(2) of this title is liable, whether or not there is any such property at the time of the commencement of the case. See 11 USC § 101(7). Section 541(a)(2) specifically includes:
All interests of the debtor and the debtor’s spouse in community property as of the commencement of the case that is—
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under the sole, equal, or joint management and control of the debtor; or
liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor’s spouse, to the extent that such interest is so liable.
11 U.S.C. § 541(a)(2). Whether a creditor holds a community claim will be determined by state law. In re Soderling, 998 F.2d 730, 733 (9th Cir. 1993); In re Maready, 122 B.R. 378, 381 (B.A.P. 9th Cir. 1991). In this regard, Cal. Fam. Code § 910(a) provides that:
Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
Greeta Dason asserts in her motion that she is not personally liable for the Judgment pursuant to California Family Code Section 1000(a). This assertion is correct, but as pointed out by Olivares, completely misplaced. California Family Code § 1000(a) & (b) states as follows:
A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist.
The liability of a married person for death or injury to person or property shall be satisfied as follows:
If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.
If the liability of the married person is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate.
Cal. Fam. Code § 1000(a) & (b) (emphasis added)
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The issue here is whether the Debtors’ community property is liable for the Judgment, not whether Greeta Dason is personally liable (such that a creditor could get a judgment against her, pursue her separate property, etc.). Critically, Greeta Dason ignores Cal. Fam. Code § 1000(b), which clearly states that Olivares’ claim can be satisfied from Sam Dason’s separate property (of which the bankruptcy schedules reflect there is none), and also from community property. Thus, as the Judgment was based on a debt incurred during the marriage for which community property is liable pursuant to Cal. Fam. Code §§ 910(a) and 1000, and because it is conceded that the Property was community property as of the petition date, it is clear that Sam Dason’s debt to Olivares is a community claim under California (“Community Claim”), made non-dischargeable by the Judgment.
Effect of the Non-Dischargeability Judgment and Greeta Dason’s Discharge on Olivares’ Ability to Satisfy her Community Claim from Community Property
Absent the Judgment, the Community Claim would be discharged in bankruptcy. Given the Judgment, however, the Community Claim survives the discharge injunction of Sam Dason and Greeta Dason. There is no authority presented by Greeta Dason to support her argument that by virtue of the Community Claim being deemed non-dischargeable, the underlying debt somehow lost its status as a community claim under state law recoverable from community property. The only authority presented by Greeta Dason in this regard is reference to 11 U.S.C. Section 524(a)(3). That statue, however, is interpreted incorrectly. Section 524(a)(3) reads as follows:
(a) A discharge in a case under this title—
operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect or recover from, or offset against, property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim, except a community claim that is excepted from discharge under section 523, 1192, 1228(a)(1), or 1328(a)(1), or that would be so excepted, determined in accordance with the provisions of sections 523(c) and 523(d) of this title, in a case concerning the debtor’s spouse commenced on the date of the filing of the petition in the case concerning the debtor, whether or not discharge of the debt based on such community claim is waived
11 U.S.C. Section 524(a)(3) (emphasis added).
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As shown by the underlined sections above, section 524(a)(3): (1) applies only in cases is designed to protect non-debtor spouses (see also section 524(b)); (2) has an express exception for community claims excepted from discharge under section 523; and (3) only protects community property acquired after the petition date. Here, in contrast, Sam and Greeta Dason were joint debtors, Olivares has a community claim excepted from discharge under section 523, and the Property was not after-acquired; it existed on the petition date. Thus Section 524(a)(3) is completely unhelpful to Greeta Dason’s argument.
Instead, by inference, Section 524(a)(3) strongly supports Olivares’ position. If an express exception in Section 524(a)(3) provides that a debtor cannot protect after-acquired community property where a community claim has been excepted from discharge in the joint debtor’s case (or where a community claim can be excepted in a non-dischargeability case filed against the non-debtor spouse), it logically follows that a creditor with a non- dischargeable community claim can pursue both after-acquired community property as well as pre-petition community property. See, e.g., In re Kimmel, 378 B.R. 630, 637 B.A.P. 9th Cir. 2007) (“The net result is that §§ 524(a)(3) and 524(b)(2) combine to prevent a wrongdoer from hiding behind an innocent spouse’s discharge, but correlatively require the innocent spouse in a community property state to bear some burden of responsibility for the wrongdoing spouse”); In re Beard-Williams, 2021 WL 276819 at *10 (Bankr. C.D. Cal. 2021) (“after obtaining the judgment against Debtor and Brown, Creditors may not enforce their judgment for a community claim against her in personam in light of her discharge, but they may enforce the judgment against Brown in personam as the debt is nondischargeable as to him, and Creditors may enforce the judgment based on a community claim against the Property as prebankruptcy community property owned by Brown and Debtor not administered in this case and abandoned pursuant to 11 U.S.C. §554(c) to Debtor and Brown.”) (emphasis added); Henry Sommer & Margaret Dee McGarity, et al., Collier Family Law and the Bankruptcy Code, ¶ 4.08 (online ed. July 2020 update) (“The protection provided by 11 U.S.C. § 524(a)(3) applies only to community property acquired after the commencement of the case. … Similarly, a community property asset that is included in the estate and abandoned by the trustee is not protected by the injunction provided by 11 U.S.C. § 524(a)(3)”) (emphasis added and citations omitted).
In other words, even if Greeta Dason was a non-debtor spouse, because Olivares has a non- dischargeable community claim in a community property state, Greeta Dason’s “burden of responsibility” for the nondischargeable claim against Sam Dason is that Olivares would be able to recover against after-acquired community property. The facts here that both Greeta
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Dason is a debtor and that the Property was pre-petition community property are even more compelling.
As such, it appears without question that the non-dischargeable Community Claim can be satisfied from community property such as the Property notwithstanding the discharge injunction in Greeta Dason’s case.
Is the Complaint based on a Claim Barred by Greeta Dason’s Discharge Injunction
As discussed above, post-petition but prior to the Transfer, once the Property was abandoned by the Trustee and thus no longer property of the estate, Olivares could seek to recover on the Judgment from Sam Dason personally, against his separate property, or against community property. At the same time, by virtue of Greeta Dason’s discharge injunction, Greeta Dason was not personally liable to Olivares and Olivares was prohibited from recovering against Greeta Dason’s separate property.
The effect of the Transfer, however, in transmuting the legal character of the Property from community property to Greeta Dason’s separate property, meant that Olivares can no longer recover against the Property. Ultimately, by Greeta’s actions in effectuating and receiving the Transfer, she diminished the amount of the community property from which Olivares was entitled to recover. It is this post-petition act that thus gives rise to Olivares’ claim against Greeta Dason in the Complaint, because, but for the Transfer, Olivares could recover against the Property. In other words, where Olivares has the ability to recover against the Property post-petition because she has a nondischargeable Judgment and the Property is community property, it is nonsensical that the Debtors could simply avoid that result by transferring the Property to Greeta Olivares as her separate property. If that were the case, a creditor with a non-dischargeable judgment against a debtor would never be able to recover against community property, even given the express exception under Section 524(a)(3), because as soon as there was a non-dischargeability determination the judgment debtor would just transfer all community property to debtor’s spouse as his/her separate property. It is also important to note that Olivares’ post-petition claim differs from the Community Claim not only in timing and nature, but also in amount, because Olivares’ post-petition claim in the Complaint pursuant to California Civil Code section 3439.04(a) is for the value of the Property transferred, not the amount of the Community Claim. As such, there is no question that Olivares’ claim against Greeta Dason set forth in the Complaint, to set aside the fraudulent transfer, arose post-petition as a result of the Transfer, and a post- petition claim and is not an attempt to collect on a pre-petition debt.
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Last, it Is absolutely incorrect that Olivares was collaterally estopped from alleging that the transfer was fraudulent because Olivares’ opposition to the Trustee’s compromise motion was withdrawn. By that motion the Trustee’s request was limited to seeking authority to compromise the estate’s interest in the Property by abandoning the Property to the Debtors in exchange for payment. The fact that the settlement reflects that the Debtors wanted to then transfer the Property to Greeta Dason alone after abandonment is completely irrelevant to the Trustee’s request, and no Court authority was requested or granted as to that proposed transfer. The Trustee abandoned the Property to the Debtors where it remained community property, and then the Debtors transferred it to Greeta Dason. It was their act alone. The Trustee’s compromise motion and the order thereon in no way prevent Olivares from attacking the Transfer under state law as a fraudulent conveyance.
Contempt Standard
Assuming, Arguendo, Olivares did violate the discharge injunction, is a contempt finding nonetheless warranted? It is not sufficient for a contempt finding to prove that Olivares merely violated the discharge injunction. Instead, the standard for contempt is that a court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct. Taggart v. Lorenzen, --
U.S. --, 139 S.Ct. 1795, 1799, 204 L.Ed.2d 129 (2019) (emphasis in original). In this case, where, as shown above, the claims set forth in the Complaint do not violate Greeta Dason’s discharge injunction, Greeta Dason cannot satisfy the standard for Contempt.
Conclusion
For the reasons set forth above, it is the Court’s intention to DENY the motion WITH PREJUDICE.
Debtor(s):
Sam Daniel Dason Represented By Robert G Uriarte
Joint Debtor(s):
Greeta Sam Dason Represented By Robert G Uriarte
12:30 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Brett Ramsaur
1:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
EH
(Tele. appr. Charles Schrader, Plaintiff)
Docket 427
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
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
1:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
EH
(Tele. appr. Charles Schrader, Plaintiff)
Docket 447
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
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, 11/18/20,12/2/20,2/17/21
(Holding date) EH
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
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
EH
Docket 1
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Pro Se
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
Carmela Pagay
Trustee(s):
Lynda T. Bui (TR) Represented By
2:00 PM
Todd A Frealy
2:00 PM
EH
(Tele. appr. Christopher Demint, rep client, DW Trim Inc.) (Tele. appr. Steven Fox, rep. Debtor, DW Trim Inc.)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 51
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
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, 9/28/20,2/1/21 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#: 6:20-01077 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Represented By
Michael A Wallin
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):
Sonja Hourany
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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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#: 6:20-01051 Pringle v. Serour
From: 7/27/20, 9/28/20,11/30/20,2/1/21 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
$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, 9/28/20,11/30/20,2/1/21 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
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
$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, 9/28/20,11/30/20,2/1/21 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
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#: 6:20-01054 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, 9/28/20,11/30/20,2/1/21 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
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#: 6:20-01055 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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
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#: 6:20-01059 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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#: 6:20-01063 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: 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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#: 6:20-01071 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 EH
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous 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#: 6:20-01087 Pringle v. Zumut et al
From: 7/27/20, 9/28/20,11/30/20,2/1/21 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#: 6:20-01091 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, 9/28/20,11/30/20,2/1/21 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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01093 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, 9/28/20,11/30/20,2/1/21 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, 9/28/20,11/30/20,2/1/21 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: 9/30/20,11/30/20,2/1/21 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
From: 11/30/20,2/1/21 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
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, 9/28/20,11/30/20,2/1/21 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#: 6:20-01127 Pringle v. Awad
(HOLDING DATE)
From 9/30/20,1/13/21, 3/17/21 EH
Docket 5
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
1:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 1/5/21,2/16/21 EH
Docket 36
Debtor(s):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James G. Beirne
Movant(s):
Specialized Loan Servicing LLC Represented By
John Rafferty Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Anthony Vigil, rep. Debtors, Michael and Samantha Jackson)
Docket 44
4/15/2021
Analysis: 11 U.S.C. § 330(a)(1) provides that the court may award attorney fees for "reasonable compensation for actual, necessary services" and for "reimbursement for actual, necessary expenses." § 330(a)(3)(F) provides that in determining the reasonableness of the fees the court shall consider "whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title." "[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) citing Blum v. Stenson, 465 U.S. 886, 896 (1984) at n. 11; see also
In re Walker, 652 Fed. Appx. 539, 540 (9th Cir. 2016)(unpublished) ("[chapter 13 debtor’s counsel] did not carry its burden of proving its entitlement to the fees requested because it failed to produce sufficient evidence that the fee request was
11:00 AM
reasonable").
$5,000.
On August 31, 2020, Creditor Exeter Finance filed a motion for relief from stay. Counsel filed a one page opposition stating parties were working on an APO. On September 24, 2020, the parties filed an APO. The Court granted it pursuant to order entered on September 25, 2020. On January 7, 2021 Creditor Freedom Mortgage Corporation filed a motion for relief from stay. Counsel filed a two- page opposition arguing the motion was moot as Debtors had tendered the late mortgage payments. Copies of the checks, the mortgage statement, and the payment history schedule were attached as exhibits. Movant withdrew the motion at the hearing.
On March 18, 2021, Counsel filed an application seeking $3,400 in fees related to these two relief from stay motion. On March 22, 2021, Trustee filed comments arguing that there was no evidence to show that the issues Counsel dealt with were any different than those commonly faced by chapter 13 practitioners.
Additionally, task related to emailing and follow up could have been billed at a lower paralegal rate. Trustee recommended fees be reduced to $1,040 representing 1.6 hours of attorney time at $400 per hour to cover review, the oppositions, and APO negotiations, and $540 for 3.6 hours of paralegal time at
$150 an hour for a total fee award of $1,580.
The Court, having reviewed the oppositions, APO, and billing records, agrees with Trustee’s contention that it appears that Counsel has not faced any problems that are unusual to a typical Chapter 13 case. As Counsel has not provided any evidence to the contrary, the Court considers how other courts have dealt with such applications.
The court in In re Quiroz 6:17-BK-10255-WJ, 2019 WL 9244665 has conducted a study on fees typically awarded for services relating to relief from stay. The
11:00 AM
Quiroz court found that attorneys in chapter 13 cases in Riverside county who perform services involving a form opposition that are typically resolved by an adequate protection stipulation are awarded $608.34. Id. at *6-*7 (Bankr. C.D. Cal. Dec. 12, 2019) ("for the last three years (2017-2019), the average amount of fees which chapter 13 debtors and trustees have agreed upon for similar services [for resolving a motion for relief from stay] is $608.34").
The Court also notes that .8 of an hour spent on the first opposition and 1.0 of an hour spent on the second opposition appears excessive given the contents of the documents. Additionally, certain of the other time entries appear excessive. The Court agrees with Trustee that much of the work could have been done by a paralegal, thus lowering the total billed. Accordingly, the Court is inclined to adopt the Trustee’s recommendation and APPROVE additional fees in the amount of $1,580 and DISAPPROVE the remaining $1,820.
APPEARANCES REQUIRED. Applicant may decline to appear and will be deemed to submit to the tentative.
Debtor(s):
Michael Lewis Jackson Represented By Anthony B Vigil
Joint Debtor(s):
Samantha Kim Jackson Represented By Anthony B Vigil
Movant(s):
Michael Lewis Jackson Represented By Anthony B Vigil
Samantha Kim Jackson Represented By Anthony B Vigil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3
(Placed on calendar by order entered 3/23/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 74
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Movant(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/18/21, 4/1/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 70
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. David Lozano, rep. Debtor, Jose Vasquez)
Docket 17
- NONE LISTED -
Debtor(s):
Jose M Vazquez Javier Represented By David Lozano
Trustee(s):
Rod (MH) Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 7
- 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 1
- NONE LISTED -
Debtor(s):
Lenois Stovall Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joanne Andrew, specially appearing for Debtor, Nicholas Wajda)
Docket 2
- NONE LISTED -
Debtor(s):
Jaime Mendez Gonzalez Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Giovanna Gallo, rep. Debtor, Leticia Aispuro)
Docket 28
- NONE LISTED -
Debtor(s):
Leticia Aispuro Represented By Giovanna M Gallo
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Howard Terrell, Debtor)
Docket 18
- NONE LISTED -
Debtor(s):
Howard E Terrell Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 2
- NONE LISTED -
Debtor(s):
Phyllis Ann Colucci Represented By
W. Derek May
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Christine Marlo Represented By Bruce A Boice
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 2
- NONE LISTED -
Debtor(s):
Rosendo Trevino III Represented By Paul Y Lee
Joint Debtor(s):
Timmie Lynn Trevino Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joseph Delmotte, rep. creditor, U.S. Bank National Association)
Docket 18
- NONE LISTED -
Debtor(s):
Thomas J. Gibbs Represented By Terrence Fantauzzi
Joint Debtor(s):
Sandra J. Gibbs Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 93
- NONE LISTED -
Debtor(s):
Teresa M. Dearmond Represented By Amanda G Billyard Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 89
- 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 69
- 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
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor, Cesar Orozco)
Docket 75
- NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 67
- 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
EH
Docket 59
- NONE LISTED -
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 55
- 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
MOVANT: THE BANK OF NEW YORK MELLON
EH
Docket 79
- NONE LISTED -
Debtor(s):
Jose Ignacio Vega Represented By Todd L Turoci
Joint Debtor(s):
Rosalba Ruiz Quinonez Represented By Todd L Turoci
Movant(s):
The Bank of New York Mellon, fka Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
EH
Docket 63
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 under ¶ 13 as moot
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Marc Burns Represented By
D Justin Harelik
11:00 AM
Movant(s):
Specialized Loan Servicing, LLC Represented By
Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit Company, LLC)
Docket 122
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A).
Here, Debtor did not file a statement of intention. As the thirty-day deadline for filing or amending the statement of intention passed on April 2, 2021 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):
Eriberto A. Sandoval Represented By Christopher J Langley Michael Smith
Movant(s):
Ford Motor Credit Company LLC Represented By
Jennifer H Wang Sheryl K Ith
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
From: 3/2/21, 4/6/21
MOVANT: SELECT PORTFOLIO SERVICING INC.
EH
(Tele. appr. Jenelle Arnold, rep. creditor, Select Portfolio Servicing, Inc)
Docket 90
Parties to apprise Court of status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Dwayne J. Williams Represented By Michael Jay Berger
Joint Debtor(s):
Dana S. Williams Represented By Michael Jay Berger
11:00 AM
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 34
Movant to apprise Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Jeremiah M Moore Represented By Tom A Moore
Movant(s):
Freedom Mortgage Corporation Represented By Ashley Popowitz Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Case converted to chapter 7 on 3/30/21)
MOVANT: NEWREZ LLC d/ba SHELLPOINT MORTGAGE SERVICING
EH
(Tele. appr. Joselina Medrano, rep. Debtor, Michael Williams)
Docket 45
This bankruptcy case was converted to Chapter 7 after the filing of the instant motion. For this reason, the Court is inclined to CONTINUE the matter for service on the Chapter 7 Trustee.
APPEARANCES REQUIRED.
Debtor(s):
Michael L. Williams Represented By Gregory Ashcraft
11:00 AM
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Alexander G Meissner Julian T Cotton
Mary D Vitartas Dane W Exnowski
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
(Tele. appr. Nancy Lee, rep. creditor, Deutsche Bank National Trust Company)
Docket 68
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 requests under ¶¶ 2, 3, and 12,
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Leonard Lott Represented By
Daniel King
11:00 AM
Joint Debtor(s):
Darlene Lott Represented By
Daniel King
Movant(s):
Deutsche Bank National Trust Represented By Nancy L Lee Jennifer C Wong
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 34
- NONE LISTED -
Debtor(s):
Jerold Ray Hoxie Represented By Suzette Douglas
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC
EH
(Tele. appr. Fritz Firman, rep. Debtors, Diana & Ramiro Nava) (Tele. appr. Kristin Zilberstein, rep. creditor, NEWREZ LLC)
Docket 59
Given the evidence submitted by Debtors that Movant granted Debtors a COVID-19 related forbearance for the payments in question, the Court is inclined to DENY the motion for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber
11:00 AM
Movant(s):
Fritz J Firman
NewRez LLC d/b/a Shellpoint Represented By Eric P Enciso
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/2/21
MOVANT: ALLY FINANCIAL
EH
(Tele. appr. Jenelle Arnold, rep. creditor, Ally Financial)
Docket 75
- NONE LISTED -
Debtor(s):
Juan Manuel Andrade Represented By
J.D. Cuzzolina
Joint Debtor(s):
Cecilia R Andrade Represented By
J.D. Cuzzolina
Movant(s):
Ally Financial Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FIRST INVESTORS SERVICING CORPORATION
EH
Docket 49
- NONE LISTED -
Debtor(s):
Keisha Renette Williams Represented By Nicholas M Wajda
Movant(s):
First Investors Servicing Corporation Represented By
Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CALIBER HOME LOAN, INC.
EH
Docket 33
- NONE LISTED -
Debtor(s):
Billy J Woody Represented By Amanda G Billyard
Joint Debtor(s):
Tamara L Woody Represented By Amanda G Billyard
Movant(s):
Caliber Home Loans, Inc. Represented By Darlene C Vigil Jennifer C Wong Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER
EH
(Tele. appr. Paul Lee, rep. Debtor, Phat Khamkathok)
Docket 49
- NONE LISTED -
Debtor(s):
Phat M Khamkathok Represented By Paul Y Lee
Movant(s):
Nationstar Mortgage LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 12/15/20,1/19/21, 3/2/21, 4/6/21 EH
(Tele. appr. Darlene Vigil, rep. creditor, Lakeview Loan Servicing, LLC)
Docket 72
- NONE LISTED -
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
Movant(s):
Lakeview Loan Servicing, LLC Represented By Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
EH
(Tele. appr. Jenelle Arnold, rep. creditor, Lakeview Loan Servicing, LLC)
Docket 28
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 requests under ¶¶ 2 and 3
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Uriel Garcia Represented By
William Radcliffe
11:00 AM
Joint Debtor(s):
Lilliana Garcia Represented By William Radcliffe
Movant(s):
Lakeview Loan Servicing, LLC Represented By Joseph C Delmotte
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: VW CREDIT LEASING, LTD.
EH
Docket 30
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 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):
Gloria Nadine Lee Represented By
Ramiro Flores Munoz
Joint Debtor(s):
Rodney Duane Lee Represented By
Ramiro Flores Munoz
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: SANTANDER CONSUMER USA INC.
EH
Docket 25
- NONE LISTED -
Debtor(s):
Yvette Deneese Kearns Represented By Aaron Lloyd
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, Americredit Financial Services, Inc.)
Docket 15
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 requests under ¶¶ 11 and 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):
Sylvia Avila Solorio Represented By Daniel King
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
(placed on calendar by order entered 3/24/21) EH
(Tele. appr. Leslie Bower, rep. creditor, Winn Family Trust)
Docket 20
- NONE LISTED -
Debtor(s):
Integrity Plus Installation Represented By
Robert B Rosenstein
Movant(s):
Winn Family Trust Represented By LESLIE A BOWER
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: WILMINGTON SAVINGS FUND SOCIETY
EH
(Tele. appr. EDrin McCartney, rep. creditor, Wilmington Savings Fund Society)
Docket 35
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 7 case dismissed on November 19, 2020, less than one year before the instant case was filed on December 29, 2020. Debtor not having filed a motion to continue the automatic stay, the automatic stay expired on
11:00 AM
January 28, 2021. Therefore, the automatic stay no longer being in effect, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Juana Flordeliza Phillips Represented By Stephen L Burton
Movant(s):
Wilmington Savings Fund Society, Represented By
Erin M McCartney
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: HONDA LEASE TRUST
EH
(Tele. appr. Vincent Frounjian, rep. Honda Lease Trust)
Docket 14
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
11:00 AM
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(p)(1).
Debtor filed the petition on January 9, 2021, and the deadline to assume the lease expired on March 10, 2021. Accordingly, the automatic stay as to the 2017 Acura RDX was 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):
Hong T Trinh Represented By
Thinh V Doan
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 14
In relevant part, 11 U.S.C. § 362 states:
(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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor’s statement of intention selects an option to retain the property and continue making payments based on the pre-bankruptcy loan agreement. This option is known as "ride-through" and is not available in this circuit, and as such Debtor cannot properly select it under the statute. See In re Dumont, 581 F.3d 1104 (2009). The Debtor was required to select to either surrender, redeem the property, or to enter a reaffirmation agreement. See 11 U.S.C. § 362(h)(1)(A). As the thirty-day deadline for filing or amending the statement of intention was March 15, 2021, the automatic stay has terminated as to the 2016 Chrysler 300 as a matter of law. See 11 U.S.C. § 521(a)(2)(A). Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Thalia Lisbeth Estrada Represented By Neil R Hedtke
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: HUGHES FEDERAL CREDIT UNION
EH
(Tele. appr. M. Jeffrey Micklas, rep. creditor, Hughes Federal Credit Union)
Docket 15
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 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):
Jesus Rudolfo Ayala Represented By Summer M Shaw
Joint Debtor(s):
Linda Margaret Martinez Represented By
11:00 AM
Trustee(s):
Summer M Shaw
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Exeter Finance LLC)
Docket 22
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 relief from 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):
Crucita Cruz Cruz Represented By Dana Travis
Movant(s):
Exeter Finance LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: KINECTA FEDERAL CREDIT UNION
EH
(Tele. appr. Mark Blackman, rep. creditor, Kinecta Federal Credit Union)
Docket 15
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor did not list the subject collateral on the statement of intention. 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 thirty-day deadline for filing or amending the statement of intention passed on March 26 2021 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):
Anibal Javier Gonzalez Represented By John Asuncion
Joint Debtor(s):
Sarah Roman Gonzalez Represented By John Asuncion
Movant(s):
Kinecta Federal Credit Union Represented By Mark S Blackman
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: DAIMLER TRUST
EH
(Tele. appr. Sheryl Ith, rep. creditor, Daimler Trust)
Docket 17
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 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):
Dominique A Smart Represented By John A Varley
Movant(s):
Daimler Trust Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE, LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Exeter Finance LLC)
Docket 9
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor did not list the subject collateral on the statement of intention. 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 thirty-day deadline for filing or amending the statement of intention passed on March 28, 2021 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):
Jose Francisco Benitez Aguilar Represented By Edward G Topolski
Joint Debtor(s):
Crystal Deann Benitez Represented By Edward G Topolski
Movant(s):
Exeter Finance LLC Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Exeter Finance LLC)
Docket 11
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor did not list the subject collateral on the statement of intention. 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 thirty-day deadline for filing or amending the statement of intention passed on April 4, 2021 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):
Sergio Tortoledo-Mejia Represented By Paul Y Lee
Joint Debtor(s):
Valerie Arlene Tortoledo Represented By Paul Y Lee
Movant(s):
Exeter Finance LLC Represented By Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 7
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 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):
Jorge Gutierrez Represented By David L Nelson
Movant(s):
TD Auto Finance LLC Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Arturo Cisneros (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 7
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 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):
Miguel Angel Calderon Represented By Todd L Turoci
Joint Debtor(s):
Dora Calderon Vega Represented By Todd L Turoci
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: BANK OF THE WEST
EH
Docket 11
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 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):
Marcia Marie Clift Represented By Todd L Turoci
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
From: 1/5/21, 4/6/21 EH
(Tele. appr. Donald Reid, for Debtor, Raman Enterprises LLC) (Tele. appr. Ali Matin, rep. United States Trustee's Office)
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Sevan Gorginian
11:00 AM
EH
(Tele. appr. Holly Parker, rep. Debtor, Sinqua Walls) (Tele. appr. Kelly Ann Tran, rep. creditor, EDUCAP, Inc.)
Docket 18
4/21/2021
On March 31, 2011, Sinqua M. Walls ("Debtor") filed a Chapter 7 voluntary petition. In his petition, Debtor listed "Private Student Loan" debt ("Student Loan Debt") in the amount owed to EduCap, Inc., loan servicer and administrator for Bank of America Student Loan Program. Debtor received a standard section 727 discharge on August 4, 2011. [ECF Dkt. 10]. Part of the discharge includes a section entitled "Explanation of Bankruptcy Discharge in a Chapter 7 Case," and it states in relevant part:
Debts That are Not Discharged.
Some of the common types of debts which are not discharged in a chapter 7 bankruptcy case are:
11:00 AM
….
Debts for most student loans.
ECF Dkt. 10 (emphasis in original).
Following the close of the bankruptcy, Debtor made payments on the loan to EduCap pursuant to a stipulation. Debtor defaulted, and a Judgment By Default On Stipulation was entered in favor of EduCap. Debtor filed a claim of exemption arguing that the Student Loan Debt was discharged in bankruptcy. Following a series of hearings in state court, the Honorable Judge Karlan ordered EduCap to obtain an order from the bankruptcy court as to whether the Student Loan Debt was discharge.
On March 8, 2021, the bankruptcy case was reopened. [ECF Dkt. 16]. On March 19, 2021, EduCap filed the instant motion with declarations for Order Confirming Student Loan Debt Not Discharged. [ECF Dkt. 18] and Exhibit A on March 26, 2021. [ECF Dkt. 25]. Debtor filed an opposition and declaration on March 30, 2021. [ECF Dkts. 27, 28]. On April 14, 2021, EduCap filed a reply. [ECF Dkt. 30].
11 U.S.C. § 523(a) provides a list of debts that are not discharged by a section 727 discharge. It states, in relevant part:
(8) unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the 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,
11:00 AM
incurred by a debtor who is an individual;
11 U.S.C. § 523(a)(8)(A)-(B) (emphasis added). Section 221(d)(1) of the Internal Revenue Code states, in part:
Qualified education loan.--The term "qualified education loan" means any indebtedness incurred by the taxpayer solely to pay qualified higher education expenses--
which are incurred on behalf of the taxpayer, the taxpayer's spouse, or any dependent of the taxpayer as of the time the indebtedness was incurred,
which are paid or incurred within a reasonable period of time before or after the indebtedness is incurred, and
which are attributable to education furnished during a period during which the recipient was an eligible student.
26 U.S.C. § 221(d)(1). As EduCap correctly points out "Section 523(a)(8) is self- executing." Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004) (internal quoatations omitted). "Unless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt." Id. Thus, contrary to Debtor’s argument, it is immaterial that a student loan creditor file a claim during the bankruptcy. See Hood, 541 U.S. at 450 ("[T]he major difference between the discharge of a student loan debt and the discharge of most other debts is that governmental creditors, including States, that choose not to submit themselves to the court's jurisdiction might still receive some benefit: The debtor's personal liability on the loan may survive the discharge."). To secure a hardship determination and have a student loan discharged, a debtor must initiate an adversary proceeding. Id. at 451-52.
Here, Debtor does not dispute the characterization of the Student Loan Debt and EduCap is a non-profit corporation that develops and administers loan programs to finance education. The promissory note also provides a description of the loan program:
"Under this Bank of America Student Loan Program (the "Loan Program"),
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subject to the terms of this Note, I may borrow amounts to pay the Student’s cost of attendance at the Student’s School ("the Loan.")
ECF Dkt. 25, Ex. A-3. Section 13 of the note further states:
13. USE OF PROCEEDS
I represent and agree that the proceeds of the Loan and the loans consolidated under this Note have been used solely for tuition and other reasonable education expenses, including, but not limited to room and board, fees, books, personal computer, supplies and equipment, laboratory expenses, transportation and commuting costs, and other education-related personal expenses of the Student. The Borrower and /or co-signor, if any, will not receive any proceeds of the Loan. I understand that the loan is not dischargeable in bankruptcy except pursuant to 11 U.S. Code Section 523(a)(8).
Id. at Ex. A-4.
Accordingly, the debt is correctly characterized as a student loan within the parameters of 11 U.S.C. § 523(a). Debtor having not obtained a hardship determination,1 the Court concludes that the Student Loan Debt was not discharged.
For the foregoing reasons, the Court is inclined to GRANT EduCap’s motion.
APPEARANCES REQUIRED.
Debtor(s):
Sinqua M. Walls Represented By Jasmine Firooz
Movant(s):
11:00 AM
EDUCAP, INC. Represented By Kelly Ann M Tran
Trustee(s):
Sandra L Bendon (TR) Pro Se
11:00 AM
(Tele. appr. Marc Lieberman, rep. Pasternak, Fredman Lieberman Pearl LLP)
Docket 305
- NONE LISTED -
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
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
EH
(Tele. appr. Marc Lieberman, rep. Pasternak, Fredman Lieberman Pearl LLP)
Docket 310
- NONE LISTED -
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
Trustee(s):
Howard B Grobstein (TR) Represented By Alan W Forsley
11:00 AM
From: 4/7/21 EH
Docket 489
- 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
(Holding Date) Status Conference for OSC
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20,2/10,21, 4/7/21
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
(Tele. appr. J. Stanley Demaree, rep. Debtor, Ghazi Ghori)
Docket 33
BACKGROUND
On September 15, 2017, Ghazi Khan Ghori ("Debtor") filed a Chapter 7 voluntary petition. Debtor received a discharge on December 27, 2017. The case was reopened pursuant to order entered on January 7, 2021.
Debtor filed the instant motion seeking to avoid the junior judicial lien held by College Square, L.P. ("Creditor") in the amount of $27,671.60 pursuant to 11 U.S.C. §522(f) in the property Debtor claims as his homestead located at 14126 Bay Circle, Corona, Riverside, California 92800 ("Bay Circle residence"). The Bay Circle residence is currently encumbered by a first position lien in the amount of $461,798.40 and a second position lien in the amount of $836,101.70. Per the appraisal, the fair market value is
$605,000.
On March 24, 2021, Creditor filed an opposition and request for a hearing arguing that the Bay Circle residence was not Debtor’s homestead at the time of the bankruptcy petition, rather Debtor lived at 21610 Dunrobin way, Yorba Linda, CA 92887 in 2017 at time of filing bankruptcy ("Dunrobin residence"). The Court set the motion for hearing on March 25, 2021. On April 14, 2021, Debtor filed a reply.
DISCUSSION
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11 USC 522(f) allows Debtor to avoid a judicial lien only to the extent it impairs an exemption he is entitled to under § 523(b)(3), which states, in relevant part:
Property listed in this paragraph is--
subject to subsections (o) and (p), any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor's domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor's domicile has not been located in a single State for such 730-day period, the place in which the debtor's domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place;
Accordingly, for Debtor to claim a homestead exemption in the Bay Circle residence, he had to have been domiciled there within the time parameters set by the statute. Here, the Court finds that Creditor has met its burden to create a dispute as to the homestead status of the Bay Circle residence. Creditor provided a property profile for the Bay Circle residence from 2016 listing Debtor’s mailing address as the Bay Circle residence. In 2016, after a stakeout, Debtor was served at the Dunrobin residence. In 2016 and 2017, Debtor sent his children to school in Yorba Linda. Additionally, a copy of Debtor’s real estate broker license lists the Dunrobin Residence as his address as of March 22, 2021.
Debtor argues that he used the Dunrobin Way residence as only a mailing address to protect his privacy from the tenants renting in the Bay Circle residence. Debtor, however, does not clarify or provide any evidence that he lived at the Bay Circle residence at the time of filing, or at the very least shown it was intended as his primary residence, other than declaring it so. More importantly, Debtor does not explain or dispute why his children were in school in Yorba Linda, rather than Corona. The Court questions if Debtor rented the Dunrobin Way residence during the bankruptcy or even owned it. The Court notes a rental or home ownership expenses in the amount of $3,089 on Debtor’s schedule J. Without Debtor residing in the Bay Circle residence at the time of filing, the Court cannot be certain of Debtor’s domicile there, and thus eligibility for the homestead exemption.
As to Debtor’s argument that Creditor’s objection to exemption is asserted years after the 30-day deadline prescribed by FED. BANKR. Rule 4003(b)(1), subsection (d) provides that
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"[n]otwistanding the provisions of subdivision (b), a creditor may object to a request under §522(f) by challenging the validity of the exemption asserted to be impaired by the lien."
The Court also notes that although a 17-day deadline is generally required to oppose a motion upon notice of opportunity to request a hearing, it is within the Court’s discretion to treat late filings as a waiver to oppose the requested relief. Here, more significantly the opposition is an objection to an exemption claim. Pursuant to LBR 9013(o)(2) claim objections should not be determined through the notice of opportunity for hearing procedure.
Creditor having met its burden to call into question Debtor’s homestead exemption, the Court is inclined to CONTINUE the motion and ORDER supplemental briefing and evidence on the issue of the homestead exemption.
APPEARANCES REQUIRED.
Debtor(s):
Ghazi Khan Ghori Represented By Jerome S Demaree
Movant(s):
Ghazi Khan Ghori Represented By Jerome S Demaree Jerome S Demaree
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
(Tele. appr. Sam Tabibian, rep. creditor, Roberto Alfaro by and through his GAL Marisela Alfaro)
(Tele. appr. Charles Daff, rep. chapter 7 trustee) (Tele. appr. John Pringle, chapter 7 trustee)
Docket 49
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee, Counsel, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 3,250 Trustee Expenses: $ 76.37
Attorney Fees: $ 3,645 Attorney Expenses: $ 241.20
Accountant Fees: $ 1,000 Accountant Expenses: $ 0
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):
Laura Valles Represented By
Dana Travis
Trustee(s):
John P Pringle (TR) Represented By Charles W Daff
11:00 AM
(Tele. appr. Robert Whitmore, chapter 7 trustee)
Docket 96
- 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
11:00 AM
EH
(Tele. appr. Michelle Marchisotto, rep. chapter 7 trustee)
Docket 38
4/21/2021
Service proper No opposition
On May 17, 2018, Alfredo and Daniela Andrade ("Debtors") filed a Chapter 7 voluntary petition. On August 1, 2018, Debtors amended Schedule A/B Debtors to list claim in a class action lawsuit for unpaid overtime compensation under the Fair Labor Standards Act against the County of San Bernardino entitled Penny Pike and David Denkin, et al
v. Count of San Bernardino, Case No. 5:17-cv-01680-JGB-KK filed on August 18, 2017 ("FLSA Action").
The schedules were amended again to reflect two claim amounts in the FLSA Action for
$15,579.02 and $7,488.50 in unpaid wages, and subsequently amended to reflect one claim of $23,061.52. On July 23, 2020, Trustee confirmed that Debtors had received
$25,965.05 in settlement funds.
Debtors claimed two exemptions in the funds; $10,055 under Cal. Civ Proc. Code § 703.140(b)(5) and $17,300 under 15 U.S.C. § 1673. Trustee objected, and the Court disallowed the $17,300 exemption in its entirety pursuant to order entered March 11, 2021.
11:00 AM
On March 11, 2021, Trustee filed the instant motion for an order compelling Debtors to turnover property of the estate pursuant to 11 U.S.C. § 542(a).
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.
Debtor has exempted $10,055 funds, and the total received was $25,965.05, leaving
$15,910.05 property of the estate and subject to turnover.
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 GRANT Trustee’s motion.
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Alfredo Andrade Represented By Paul Y Lee
Joint Debtor(s):
Daniela Andrade Represented By Paul Y Lee
Movant(s):
John P Pringle (TR) Represented By
Michelle A Marchisotto
Trustee(s):
John P Pringle (TR) Represented By
Michelle A Marchisotto
11:00 AM
Docket 44
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee and Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professional, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 5,005.78 Trustee Expenses: $ 138.30
Attorney Fees: $ 14,310 Attorney Expenses: $ 93.70
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):
Melissa Robinson Represented By Gregory M Shanfeld
11:00 AM
Trustee(s):
Karl T Anderson (TR) Represented By Hydee J Riggs
11:00 AM
EH
Docket 101
- NONE LISTED -
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Larry D Simons (TR) Represented By Anthony A Friedman
Trustee(s):
Larry D Simons (TR) Represented By Anthony A Friedman
11:00 AM
(3) & Contingent Motion to Extend the Discharge Deadline pursuant to Federal Rule of Bankruptcy Procedure 4004 & 1017
EH
(Tele. appr. Everett Green, rep. United States Trustee's Office)
Docket 23
4/21/2021
Service proper No opposition
On November 4, 2020, Raynaldo De Dios De Leon ("Debtor") filed a Chapter 7 voluntary petition. Schedule I lists monthly gross wages in the amount of $5,875 and net income in the amount of $4,696. Schedule E/F shows mostly unsecured nonpriority consumer debt in the amount of $84,870.
On February 2, 2021, the U.S. Trustee stipulated with Debtor to extend the objection to dismissal and discharge deadlines to March 8, 2021. On February 9, 2021, the Court granted the stipulation and ordered Trustee to file a motion to dismiss pursuant to 11
U.S.C. § 707(b) or to object to discharge pursuant to §727.
On March 8, 2021, Trustee filed the instant motion to dismiss the case or alternatively to extend the discharge deadline. Trustee argues that the Debtor’s case is presumed abusive, as he does not satisfy the means test because his income is higher than listed.
In relevant part, 11 U.S.C. § 707 (b)(1) states:
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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)(2)(A)(i) provides guidance for granting such relief, as follows:
In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter, the court shall presume abuse exists if the debtor's current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of—
25 percent of the debtor's nonpriority unsecured claims in the case, or
$8,175 whichever is greater; or
(II) $13,650
The presumption of abuse may be rebutted by demonstrating "special circumstances," e.g., a serious medical condition. § 707 (b)(B)(i).
In his means test, Debtor calculated his disposable income as $88.89 and listed his monthly income as $5,875 and monthly expenses as $5,786.11, including secured debt payments of $2,955.22.
Based on review of the Debtor’s earning statements and noting overstated secured debt payments, Trustee calculated that Debtor’s current monthly income for the period preceding the bankruptcy, per the requirements of the means test, as $7,839.48 with total deductions of $6,535.68. This results in net income of $1,303.80 or $78,228 over a sixty-month period, amounts not low enough to pass the means test to be eligible to file under Chapter 7. With this amount, Debtor can also pay over 25% of his unsecured non- priority debt over sixty months. Accordingly, the presumption of abuse applies. Debtor having not shown any special circumstances, the Court is inclined to dismiss the case.
Further, the Court notes that service was proper and no opposition was filed, which the
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Court deems consent to the relief requested pursuant to Local Rule 9013-1(h).
For the reasons set forth above, in the motion, and on the record, the Court is inclined to GRANT Trustee’s motion and DENY the alternate request to extend the discharge deadline as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Raynaldo De Dios De Leon Represented By Ivan Trahan
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
(Placed on calendar by order entered 3/11/21) EH
(Tele. appr. Cameron Ridley, rep. United States Trustee's Office)
Docket 26
- NONE LISTED -
Debtor(s):
Howard E Terrell Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Wyatt Clancy Cheek Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
Also #15
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, 11/18/20,12/2/20,2/17/21, 4/7/21
(Holding date) EH
(Tele. appr. Charles Schrader, Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
2:00 PM
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
EH
Docket 440
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
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#: 6:18-01138 Speier v. Conestoga Settlement Services, LLC et al
(1) Breach of Written Contract; (2) Rescission and Restitution for Fraud; (3) Money Had and Received; (4) Unjust Enrichment; (5) Fraud; (6) Negligent Representation;
(7) Negligence; (8) Rescission and Restitution for Sale of Unqualified Securities [Cal. Corp. §25503]; (9) Damages for Sale of Unqualified Securities [Cal. Corp. § 25503]; (10) Rescission: Securities: Misrepresentation [Cal. Corp. §25501]; (11) Damages: Securities: Misrepresentation [Cal. Corp. §25501]; (12) Contempt for Willful Violation of Automatic Stay Pursuant to 11 U.S.C. § 105; and (13) Elder Financial Abuse [Cal. Welf. & Inst. Code § 15600 et seq.] Nature of Suit: (14 (Recovery of money/property - other)) (Eastmond, Thomas)
(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 Rafael R Garcia-Salgado
2:00 PM
Adv#: 6:20-01032 Whitmore v. Tsirtsis et al
*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, 10/18/20,2/3/21,2/17/21, 3/17/21
EH
(Tele. appr. Michelle Marchisotto, rep. chapter 7 trustee)
(Tele. appr. Brad Mokri, rep. Defendants Pota Tsirtsis and Angelo Tsirtsis)
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 Brad A Mokri
2:00 PM
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#: 6:21-01016 Bui v. Vargas
From: 4/7/21 EH
(Tele. appr. Carmela Pagay, rep. Planitiff, Lynda Bui)
Docket 1
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Pro Se
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
Carmela Pagay
2:00 PM
Trustee(s):
Lynda T. Bui (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:21-01002 Barghi v. Dimlux, LLC.
From: 3/10/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury - SUSPENDED -
Defendant(s):
Dimlux, LLC. Pro Se
Plaintiff(s):
Mansour Hossein Barghi Represented By Fari B Nejadpour
Trustee(s):
Larry D Simons (TR) Represented By Nancy H Zamora
11:00 AM
MOVANT: CALIBER HOME LOANS, INC.
EH
Docket 50
The Court, having reviewed and considered the motion, finds cause exists where Debtor has missed seven mortgage payments. 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 WAIVED. 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 Harrington Represented By Kevin Cortright
Movant(s):
11:00 AM
Caliber Home Loans, Inc. Represented By Erin Elam
Cassandra J Richey Sean C Ferry Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AJAX MORTGAGE LOAN TRUST 2019-E, MORTGAGE BACK SECURITIES, SERIES 2910-E BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
From: 2/16/21 EH
(Tele. appr. Donna Travis, rep. Debtor, Portia Barmes)
(Tele. appr. Reilly Wilkinson, rep. AJAX Mortgage Loan Trust 2019-E)
Docket 78
- NONE LISTED -
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Movant(s):
Ajax Mortgage Loan Trust 2019-E, Represented By
Reilly D Wilkinson Joshua L Scheer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, NATIONAL ASSOCIATION
EH
Docket 55
Parties to apprise the Court of the status of mortgage arrears and of any adequate protection discussion.
APPEARANCES REQUIRED.
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Movant(s):
Wells Fargo Bank Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
Docket 41
The Court, having reviewed and considered the motion, finds cause exists where Debtor has missed two mortgage payments and Debtor’s most recent payment appears to have been made more than four month ago. The Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 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):
Ethel Ntom Odimegwu Represented By Stephen L Burton
11:00 AM
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES
EH
(Tele. appr. Sheryl Ith, rep. creditor, Americredit Financial Services)
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):
Charles Gregory Represented By Christopher Hewitt
11:00 AM
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Sheryl K Ith
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: MALTA CENTENO LAMBERT
EH
(Tele. appr. Yelena Gurevich, rep. Debtor, Malta Lambert)
Docket 13
Debtor had a previous case dismissed on February 1, 2021. Therefore, pursuant to § 362(c)(3)(A), the automatic stay in the instant case terminates on the thirtieth (30th) day following the petition date unless the stay is continued. The Court notes that Debtor styled the relief requested as imposing an automatic stay, which only applies where two or more cases were dismissed in the previous year. As Debtor only had one previous case dismissed, the Court will construe the requested relief as continuing the stay.
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 make plan payments. 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), to continue the automatic stay, Debtor must rebut this statutory presumption by providing "clear and convincing" evidence to the contrary.
11:00 AM
Debtor states that she previously failed to make plan payments due to Covid-19 related financial set-backs, but now she has sufficient income to complete a 60 month plan and become current on the mortgage arrears as evidence that the case was filed in good faith. Debtor, however, has not provided any evidence to show the difference in her previous income at the time of dismissal and her income as of today. To properly determine whether Debtor is likely to 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):
Malta Centeno Lambert Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 10/23/18, 4/10/19, 10/9/19, 4/22/20, 8/25/20,12/15/20
EH
(Tele. appr. Robert Opera, rep. Michael Issa, Plan Agent)
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: 3/30/31, 4/7/21 EH
(Tele. appr. Chris De Mint, rep. client, DW Trim, Inc.) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
(Tele. appr. Cameron Ridley, rep. Peter C. Anderson, U.S. Trustee)
Docket 51
4/27/2021
On February 15, 2012, D.W. Trim, Inc. ("Debtor") filed a voluntary petition for Chapter 11 bankruptcy. Debtor’s statement of financial affairs listed the sole shareholder and officer, Christopher S. De Mint’s ("Mr. De Mint") 2020 annual salary at $85,956.00.
Debtor filed a notice increasing insider compensation with the U.S. Trustee seeking to set Mr. De Mint") annual salary at $85,956.00, including approximately $1,265 in weekly shareholder distributions. The U.S. Trustee objected, and the matter was heard on April 7, 2021. The Court indicated the salary request was reasonable but denied the shareholder distributions. Debtor argued that if Mr. De Mint did not receive distributions, he would need a higher salary. The Court continued the matter for Debtor to provide authority showing Mr. De Mint should be entitled to a higher salary as reasonable compensation.
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On April 8, 2021, Debtor filed the instant motion to permit insider compensation in the amount of $173,551 for Mr. De Mint along with a request for judicial notice. On April 19, 2021, the U.S. Trustee filed an opposition and a variety of evidentiary objections. Debtor filed its reply on April 22, 2021.
As the U.S. Trustee argues, Debtor’s requested salary now significantly exceeds the Debtor’s reported compensation to Mr. De Mint on Debtor’s tax returns for the years 2018 and 2019. Per the 2018 tax return Mr. De Mint’s salary was $106,600 when he owned 50% of the stock and devoted 100% of his time to the business. In 2019, Mr. De Mint’s reported salary was $78,709 as a 100% shareholder, devoting 100% of his time to the business. With respect to the 2018 compensation, Debtor appears to argue that Mr. De Mint’s salary represents a lesser amount because he shared responsibilities with another officer (although it is unclear what those responsibilities are). Therefore, his salary, as the only officer, should have been about double the
$106,600 in 2019. Instead, he reduced his salary to offset business losses, receiving additional payments through distributions in the amount of $199,058 to save on employment taxes.
For Debtor to now re-characterize the distributions as payments that should make up Mr. De Mint’s reasonable compensation presents a tax issue. The Internal Revenue Service ("IRS") has long challenged attempts by shareholders acting as employees to minimize compensation in favor of distributions. TONI NITTI, S Corporation Shareholder Compensation: How Much Is Enough? (Jul. 31, 2011). In 1974, IRS Revenue Ruling 74-44 stated that "dividends" paid to shareholders will be recharacterized as wages when such "dividends" are paid to shareholders in lieu of reasonable compensation for services performed for the S Corp. See Rev. Rul. 74-44, 1974-1 C.B. 287. For example, in JD & Assocs., Ltd. v. United States, No. 3:04-
CV-59, 2006 WL 8440376 at *1, 2 (D.N.D. June 5, 2006), Jefferey Dahl was the sole shareholder of an accounting firm taxed as an S Corporation. He was responsible for every aspect of the firm’s business, however, he drew a salary of $19,000 in 1997,
$30,000 in 1998, and $30,000 in 1999, opting instead to take distributions from the S corporation totaling $47,000 in 1997 and $50,000 in both 1998 and 1999. Id. The IRS argued that his salary was unreasonably low and recharacterized distributions to
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wages of $42,817 in 1997, $33,072 in 1998, and $35,582 in 1999. Id. The Court agreed with the IRS that Dahl’s compensation was unreasonably low and upheld the IRS’s re-characterization. Id. at *5. Accordingly, to receive distributions in lieu of reasonable compensation is tax evasion.
That Debtor contends that the U.S. Trustee’s position is "extreme as it runs counter to ordinary common business practice" that the IRS "recognizes and allows," is inapposite to the IRS’s position. See Dkt. 100, pg. 3. Certainly, distributions are permitted, but not to offset what would have been a reasonable salary. If indeed in 2019, Mr. De Mint should have received double his compensation, a significant portion of the $199,058 in received distributions should be re-characterized as wages subject to employment taxes.
Here, on the record before the Court, Debtor’s past practices show that Mr. De Mint’s reasonable compensation reported to the IRS is approximately between
$78,709-$106,600 when devoting 100% of his time to the business. Debtor has not provided any legal authority that "reasonable compensation" should now include distribution payments where it has reported the contrary to the IRS. Nor has Debtor submitted any caselaw that an officer can declare one amount as "reasonable compensation" to the IRS and then seek a higher amount in bankruptcy where services to the business remain largely unchanged. Finally, while Debtor alleges that taking compensation as part salary and part distributions is common practice, there is no evidence that doing so is a legitimate, permissible practice.
In other words, Mr. De Mint has been profiting indirectly by paying payroll taxes only on those amounts claimed as salary, which per IRS guidelines is deemed to be his reasonable compensation. This Court sees no reason why that admission of reasonable compensation should not continue into the Debtor’s bankruptcy absent evidence indicating an increase in salary is warranted.
The Court is not unsympathetic to this conundrum, however, Debtor having not met its burden to show the Court should deviate from Debtor’s stated amounts of his reasonable compensation to the IRS, particularly considering the IRS’s rulings, the Court is inclined to DENY Debtor’s motion.
APPEARANCES REQUIRED.
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Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
11:00 AM
EH
(Tele. appr. James Lee, rep. Debtors, Steven and Paisley Velasquez)
Docket 28
- NONE LISTED -
Debtor(s):
Steven A Velasquez Sr. Represented By Marc E Grossman
Joint Debtor(s):
Paisley E Velasquez Represented By Marc E Grossman
Movant(s):
Steven A Velasquez Sr. Represented By Marc E Grossman
Paisley E Velasquez Represented By Marc E Grossman
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
Also #3
From: 4/7/21, 4/21/21 EH
(Tele. appr. Ali Matin, rep. Office of the United States Trustee) (Tele. appr. Ivan Kallick, rep. chapter 7 trustee)
(Tele. appr. Howard Grobstein, chapter 7 trustee)
Docket 489
- 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
(Holding Date) Status Conference for OSC
Also #2
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20,2/10,21, 4/7/21, 4/21/21
EH
(Tele. appr. Ali Matin, rep. Office of the United States Trustee) (Tele. appr. Ivan Kallick, rep. chapter 7 trustee)
(Tele. appr. Howard Grobstein, chapter 7 trustee)
Docket 464
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
(Tele. appr. Todd Frealy, chapter 7 trustee)
(Tele. appr. Anthony Friedman, rep. Todd Frealy, chapter 7 trustee)
Docket 124
- NONE LISTED -
Debtor(s):
Joshua Cord Richardson Represented By Amid Bahadori
Trustee(s):
Todd A. Frealy (TR) Represented By Anthony A Friedman
11:00 AM
EH
(Tele. appr. Everett Green, rep. Peter C. Anderson, U.S. Trustee) (Tele. appr. David Akintimoye, rep. Debtor, Joseph Perez)
(Tele. appr. Brandon Iskander, rep. Lynda Bui, chapter 7 trustee)
Docket 51
- NONE LISTED -
Debtor(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Movant(s):
Joseph Anthony Perez Represented By
David A Akintimoye
Trustee(s):
Lynda T. Bui (TR) Represented By Brandon J Iskander
11:00 AM
EH
(Tele. appr. Sundee Teeple, rep. Debtor, Anna Gonzales)
(Tele. appr. Brandon Iskander, rep. Todd Frealy, chapter 7 trustee)
Docket 20
- NONE LISTED -
Debtor(s):
Anna M Gonzales Represented By Sundee M Teeple
Movant(s):
Anna M Gonzales Represented By Sundee M Teeple
Trustee(s):
Todd A. Frealy (TR) Represented By Brandon J Iskander
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. appr. Reid Winthrop, rep. Plaintiff William G. Morschauser)
(Tele. appr. Cara Hagan, rep. Cross-Defendants Stephen Collias and Continental Capital, LLC)
Docket 365
The operative facts arise out of an assignment of a promissory note with a face value of $150,000. The facts that led to this assignment are complex and best understood in chronological order, although the central concern is ultimately the value of this assignment. The Court has taken judicial notice to matters on the record pursuant to FED R. EVID. 201(c) to ensure the accuracy of the factual background.
On April 4, 2003, Devore Stop ("Debtor"), a partnership between William G. Morschauser ("Morschauser" or "Plaintiff") and Mohammed Abdizadeh ("Abdizadeh") commenced case 6:03-bk-15174 before Judge Naugle by filing a voluntary chapter 11 petition for relief. Property of the estate included three parcels ("Parcel 1," "Parcel 2," "Parcel 3," collectively "the Parcels") located at 1677 Devore Road, Devore, CA 92407 secured by two notes held by Continental Capital ("ConCap"). Stephen Collias ("Collias") is the principal and member of ConCap
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(collectively "Defendants"). One note was for the principal amount of $850,000 and secured by a deed of trust ("DOT 1") on Parcel 1 and 2 ("Note 1"). The other note ("Note 2," collectively, "the Notes"), which is the Court’s main concern, was for the principal amount of $150,000 and secured by a deed of trust ("DOT 2") on Parcel 3. These Notes originated in 1998, and ConCap had purchased them from Wells Fargo on or about April 30, 2003. The copies of the Notes include allonges with non- recourse indorsements from Wells Fargo to ConCap.
ConCap moved for relief from stay on April 29, 2003. In response, Debtor filed several motions to sell Parcel 1. On July 21, 2003, parties entered into a stipulation for relief from the automatic stay. The terms required that Debtor make adequate protection payments and for the close of the sale by July 11, 2003, allowing for two fifteen day extensions.1 So long as Debtor met these conditions, ConCap could not exercise any of its foreclosure or other remedial rights. In a hearing held July 25, 2003, the Court approved the sale motion filed on June 27, 2003. At the hearing on the motion, Debtor’s attorney agreed to submit an employment application for court approval of the real estate broker, Jesse Bojorquez and American Business Investments (collectively "Bojorquez").2 The Court conditioned the sale on the escrow of broker’s commission and on a demand from ConCap on Note 1. Although, the exact numbers were not finalized, ConCap was to receive an estimated $888,262 ($794,692+$93,570 in interest), and the net proceeds to the estate were supposed to be
$95,261. No order was lodged reflecting these terms.
On August 11, 2003, a sale order ("2003 Sale Order") (Dkt. 56-1) was lodged approving the July 25, 2003 sale motion; however, the terms were inconsistent with what had been discussed and approved at the hearing.3 The order approved the sale of Parcel 1 in the amount of $1,450,000. Of that amount, ConCap was to receive
$1,075,000.4 The 2003 Sale Order included a fee waiver from Bojorquez on his broker fees and required ConCap’s demand for payment by 5 p.m. that day, or its demand would be null and void. Net proceeds to the estate were whittled down to
$1,935.54.
Bojorquez had waived his commission fee5 in exchange for an assignment of Note 2 ("Note Assignment") and assignment of DOT 2 ("DOT Assignment") (collectively, "Assignments"). There are amended escrow instructions dated August 7, 2003 stating
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that sellers and Bojorquez have agreed that ConCap will assign DOT 2 and Note 2 to Bojorquez in lieu of commission. The DOT Assignment has a document date of August 7, 2003 and was notarized on August 12, 2003. The DOT Assignment was recorded on August 14, 2003 as Document No. 2003-0607055. The Note Assignment is dated August 13, 2003 and signed by Collias as managing member for ConCap.
The Note Assignment states in its entirety:
Continental Capital LLC ("Assignor") shall assign and transfer to American Business Investments and Jesse Bojorguez ("Assignee") all its interest in that certain Promissory Note dated March 24, 1999 made by Mohammad Abdizadeh and Reyhanneh Abdizadeh in the face principal amount of $150,000, as such evidence of indebtedness has been amended, modified, supplemented, renewed, endorsed, negotiated, sold, assigned, conveyed, or otherwise transferred to date.
The sale on Parcel 1 closed on August 13, 2003, pursuant to a mutual release and settlement agreement ("Settlement Agreement"), rather than the Court’s 2003 Sale Order.6 The pertinent language that provided for payment in satisfaction of not only Note 1, but also Note 2 is as follows:
ConCap contends there is a total, due and owning on Note 1, Agreement 1, Deed 1, Assignment 1, the Changes in Terms Agreement, Note 2, Agreement 2, Deed 2 and Assignment 2 by the Borrowers, Reyhanneh and the Debtor to ConCap, as of August 13, 2003, amounts to $1,253,773.99.
ConCap nevertheless hereby agrees to accept the amount of $1,175,000 in full and complete satisfaction of all obligations of Borrowers, Reyhanneh and Debtor under the Notes, Agreements, Deeds and Assignments.
The agreement then divided up the payments. In exchange for $1,100,000 ConCap would release claims to Parcel 1. ConCap would retain the deed of trust recorded against Parcel 27 to secure the remaining $75,000. The Settlement Agreement is signed by Debtor, ConCap, the Abdizadehs, and Morschauser.8
On August 14, 2003, escrow paid ConCap the $1,100,000. On March 17, 2004, Devore Stop paid ConCap $81,464.61 in satisfaction of the $75,000 outstanding note to prevent ConCap from foreclosing on Parcel 2. As of March 2004, ConCap agrees that both loan obligations were settled.
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On March 31, 2004, the bankruptcy was converted to a chapter 7.
In 2005, Plaintiff filed multiple actions in state court for fraud, deceit, fraudulent concealment, negligence and intentional infliction of emotional distress challenging the Notes and obligations claiming his signature had been forged.9 Judgment was entered in favor of ConCap and confirmed on appeal.
On May 23, 2006, Trustee filed a sales motion subject to liens and encumbrances to transfer Parcels 2 and 3 to Plaintiff. (Dkt. 93). The Court takes judicial notice that Bojorquez’s Note Assignment was listed as one of the liens that would continue to encumber Parcel 3. Interestingly, though, Plaintiff asserted that he was the current holder of the Note by assignment from Bojorquez. Neither Bojorquez nor his counsel appear to have be served with the sales motion. The Court notes that in the Order to Show Cause proceedings ("OSC proceedings"), Plaintiff had declared that this was a "typo" and "mistake of fact."10
The motion was granted on August 31, 2007 ("2007 Sale Order"). The terms of the sale were subject to liens and encumbrances on record, however; without prejudice to Morschauser or any party in interest to bring an action before the Court to determine the validity of any lien, including Morschauser’s right to demand release of any liens. See Dkt. 101. The Court expressly retained jurisdiction to:
(1) enforce and implement the terms and provisions of the Sale, and this Order; (2) resolve any disputes, controversies or claims arising out of or relating to the Sale or this Order; (3) interpret, implement and enforce provision of this Order; (4) determine in subsequent action(s) the nature, extent and validity of any lien or encumbrance upon the subject Property.
Dkt. 101.
On January 26, 2009, the bankruptcy case closed.
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On November 30, 2012, Morschauser commenced Adv. No. 6:12-ap-01498-MH by filing a complaint against ConCap, Collias, Bojorquez, American Business Investments, and Mohammed Abdizadeh seeking the following relief: 1) quiet title, 2) declaratory relief, and 3) injunction.
On March 29, 2013, ConCap filed a motion to dismiss on the basis that it was not asserting any interests in the Parcels and was willing to execute reconveyances necessary to clear title. On July 10, 2013, The Court denied the motion noting the inconsistency in ConCap’s statements with its behavior. Subsequently, ConCap delivered the reconveyances of both deeds of trust to the Plaintiff. Plaintiff claimed that the documents contained warnings that they may not be legally sufficient due to ConCap’s assignments to Bojorquez. The Court notes the parties have not submitted copies of these reconveyances with their motions.
On May 14, 2013, Bojorquez filed a cross complaint against ConCap and Collias based on six causes of action: 1) conversion; 2) constructive trust; 3) unjust enrichment; 4) an accounting; 5) declaratory relief, and; 6) primary and secondary indemnification and contribution. On January 21, 2014, the Court granted ConCap’s motion to dismiss on the Fourth, Fifth, and Sixth causes of action and denied it as the First, Second, and Third causes of action in the cross complaint leaving only the actions for conversion, constructive trust, and unjust enrichment pending.
On June 30, 2015, Bojorquez filed Nunc Pro Tunc Application for Employment as Realtor, Application for Alternate Compensation Plan seeking to have the Court retroactively employ him as the realtor with respect to the sale of Parcel 1 in 2003 and allow him to be paid via the Note Assignment. (Dkt. 125). The Court denied his application on September 18, 2015.
On September 22, 2015, ConCap filed a motion for summary judgment. As the Court attempted to flesh out the dispute between ConCap and Plaintiff, ConCap having repeatedly claimed it was willing to cooperate with Plaintiff to clear title, the Court learned of the parties’ out of court settlement in 2003. The summary judgment proceedings were interrupted to try and clarify the facts surrounding the out of court settlement, the Court indicating its intention to set an order to show cause. On May 16, 2017, the Court issued its Order to Show Cause Why Jesse Bojorquez, American
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Business Investments, William Morschauser, Stephen Collias and Continental Capital LLC Should Not be Sanctioned for Facilitating payment to and/or receiving payment for Broker Services in Contravention of this Court's August 11, 2003, Sale Order ("OSC") (Dkt. 242). The issues and allegations surrounding the 2003 Sale Order were heavily litigated during these OSC proceedings.
As the issues surrounding the sale became clearer to the Court, on May 10, 2019, Bojorquez filed an application to reconsider the Court’s earlier order denying his nunc pro tunc employment application. (Dkt. 135). At the hearing on August 21, 2019, the Court explained the effect of granting Bojorquez’s realtor employment only gave him the right to retroactively receive the Note Assignment and DOT Assignment as payment, whatever the value may be. The order granting the motion (Dkt. 443) was ultimately entered on April 7, 2021, and states in relevant part:
The Court, having considered the moving papers, opposition, declaration in support of motion and reply brief submitted by the parties, it is hereby ordered that: The Motion is granted and Jesse Bojorquez/American Business Investments is deemed to be employed, nun pro tunc. As his compensation for services rendered to the bankruptcy estate as real estate broker, Jesse Bojorquez/American Business Investments shall be entitled to that note and deed of trust ("Note" and "Deed of Trust"), assigned to him pursuant to the Assignment of Deed of Trust and Assignment of Promissory Note, dated August 7, 2013, and August 13, 2013, respectively, and pursuant to those certain escrow instructions, dated August 13, 2013. No other compensation shall be awarded to Mr. Bojorquez for his services to the bankruptcy estate. The Court does not assume any specific value of the Note and Deed of Trust. The enforceability of the Note and Deed of Trust, and the value thereof, shall be as determined under state law.
Dkt. 443.
On January 13, 2020, the Court granted the parties’ stipulation to resolve the OSC proceedings.
All parties subsequently moved for summary judgment. On August 28, 2020, both Plaintiff and Defendants filed motions for summary judgment. (Dkt. 364, 365).
Plaintiff’s motion proceeded against all Defendants, except Abdizadeh. ConCap’s
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motion also requested summary judgment as to Bojorquez’s remaining causes of action. (Dkt. 364). On the same day, Bojorquez filed his motion for summary judgment against ConCap. Both Plaintiff and Defendants filed oppositions and replies to the other’s motion. On September 22, 2020, Bojorquez filed an opposition against Plaintiff and ConCap’s motions for summary judgment (Dkt. 392), which was subsequently amended on September 26, 2020 to comply with rules for electronic signatures and to add Bojorquez’s declaration in support of his summary judgment motion (Dkt. 400).11
After reviewing the motions and determining the issues, at the hearing on November 10, 2020, the Court indicated it did not believe it had subject matter jurisdiction on the parties’ motions, as any issues related to the bankruptcy had been resolved during the OSC proceedings. The Court continued the hearing to March 24, 2021 for the parties to brief on the issue of subject matter jurisdiction.
On February 11, 2021, Plaintiff filed his brief (Dkt. 431). Bojorquez filed his brief on February 12, 2021, indicating he was also joining Plaintiff’s brief (Dkt. 432). On February 25, 2021, ConCap filed its opposition (Dkt. 433). Plaintiff filed a reply on March 12, 2021 (Dkt. 434) and Bojorquez filed his reply on March 15, 2021 (Dkt.
435).
The Court then continued the hearing on the issue of subject matter jurisdiction to April 28, 2021 for Bojorquez to enter the order on his compensation as determined by the August 21, 2019 hearing discussed above. Plaintiff filed a supplemental brief on jurisdiction on April 16, 2021
The Court now turns to address the motions for summary judgment and decide the issue of subject matter jurisdiction.
Defendants submitted two primary arguments in support of their motion for summary judgment: 1) Plaintiff’s actions are time barred, and in any case; 2) Defendants have no adverse claims to Parcels 2 or 3. In support of its motion, Defendants stated that it
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has released all claims to the parcels since March 2004. Therefore, Plaintiff cannot satisfy the elements necessary to prove an action to quiet title.
Plaintiff opposed Defendants’ motion, arguing in its motion for summary judgment that judicial determination on title is necessary as to ConCap. In support of its motion, Plaintiff pointed to Collias’s statement that ConCap was paid off on both its Notes. Additionally, Defendants’ reconveyances contained language that they may not be legally sufficient on account of Bojorquez’s interest. As Plaintiff has already satisfied Note 2 by paying ConCap, Plaintiff argued that title should be quieted against any interest Bojorquez has in Parcel 3 on account of the DOT Assignment and the Note Assignment.
Bojorquez opposed Plaintiff’s action to quiet title against him as to Parcel 3. He holds the Note Assignment, which assigned him all interests in Note 2, and DOT Assignment from Defendants secured by Parcel 3. He has never received payment to satisfy the Note. The fact that Defendants accepted payment to satisfy Note 2 is insufficient to satisfy Bojorquez’s interest in Note 2 and Parcel 3. Bojorquez asserted that Defendants were not entitled to accept the payment on Note 2, and therefore they have converted the payment that was rightfully his and are holding the funds "constructively" for him.
As the Court indicated at the previous hearings, upon review of parties’ motions, it appeared that parties were ultimately arguing over non-bankruptcy claims between non-debtor parties years after the bankruptcy case had closed. Therefore, as a threshold matter, the Court considers whether there is subject matter jurisdiction. Additionally, as a "housekeeping matter," related to bankruptcy law, the Court clarifies a legal issue brushed on by Bojorquez’s reply brief (Dkt. 435) that ConCap purchased the Notes from Wells Fargo after the bankruptcy was filed in violation of the automatic stay.
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Every federal court has a duty to examine subject matter jurisdiction on its own motion before proceeding to the merits of a case. Ins. Corp. of Ireland, Ltd. v. Compagnie de Guinee, 456 U.S. 694, 702 (1982); see also In re Incor, Inc., 100 B.R.
790, 793 (Bankr. D. Md. 1989), aff'd, 113 B.R. 212 (D. Md. 1990) (a bankruptcy court has "the inherent power to question its own jurisdiction in any given case, and its ability to dismiss a cause of action for want of subject matter jurisdiction is not dependent upon the timeliness of a motion to dismiss"). Consequently, parties cannot agree to subject matter jurisdiction. In re Resorts Int’l, Inc., 372 F.3d 154, 161 (3d Cir. 2004) (citation omitted). Likewise, a court cannot "write its own jurisdictional ticket." In re Cary Metal Products, Inc., 23 F.3d 159, 164 (7th Cir. 1994). Federal courts presume that they lack jurisdiction and the burden is on the party to provide the basis for such jurisdiction. In re Popular Run Five Limited Partnership, 192 B.R.
848, 855 (Bankr. E.D. Va. 1995) citing to Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
Bankruptcy court jurisdiction derives from 28 U.S.C. §§ 1334 and 157. In re Resorts Int’l, 372
F.3d at 161. 28 U.S.C. § 1334(b) provides that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." In turn, the district courts may refer "any or all proceedings arising under title 11 or arising in or related to a case under title 11…to the bankruptcy judges for the district." 28 U.S.C. § 157 (a). Jurisdiction is further broken down between core and non-core proceedings. § 157 (b)(1), (c)(1).
Additionally, in certain circumstances, a court may retain jurisdiction. See, e.g., In re Smith, 866 F.2d 576, 580 (3rd Cir. 1989) (holding bankruptcy court properly retained jurisdiction after discharge over related claims arising under Pennsylvania law).
Core Proceedings
"Core" proceedings are matters "arising under" and "arising in" cases under title 11. In re Wood, 825 F.2d 90, 96 (5th Cir. 1987). Matters "arise under" title 11 if they involve a cause of action created or determined by a statutory provision of title 11.
Id. (emphasis added). Matters "arise in" a bankruptcy if they concern the administration of the bankruptcy case and have no existence outside of the bankruptcy. Id. at 97 (emphasis added). Bankruptcy judges may hear and determine core
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proceedings and enter final orders and judgments. 28 U.S.C. § 157(b)(1). The Bankruptcy Appellate Panel ("BAP") for the Ninth Circuit held that "a case should not be deemed a core proceeding if it is a state law claim that could exist outside of bankruptcy and is not inextricably bound to the claims allowance process or a right created by the Bankruptcy Code. " In re Harris Pine Mills, 44 F.3d 1431, 1438 (9th Cir. 1995) citing to Honigman, Miller, Schwartz & Cohn v. Weitzman (In re DeLorean Motor Co.), 155 B.R. 521 (9th Cir. BAP 1993) (internal quotations and brackets omitted).
Plaintiff advances two arguments that the requested relief in the parties’ motions are core matters: 1) the actions involve the Court interpreting and enforcing its’ prior sale orders and the Court has previously found it had "proper jurisdiction over issues raised to the extent that they request to determine the effect of a prior order of the bankruptcy court." (Dkt. 39, pg. 8, Jul. 25, 2013), and 2) the state law claims are "inextricably intertwined" with bankruptcy court proceedings because if not for the circumstances surrounding the Court’s 2003 Sale Order, none of the parties’ claims would exist. Plaintiff relies primarily on In re Franklin, 802 F.2d 324 (9th Cir. 1986) and In re Harris Pine Mills.
The Court does not discount the well-settled law in Franklin that it retains jurisdiction to interpret and enforce its own orders or that the Court previously acknowledged that its jurisdiction extends to "issues raised to the extent that they request to determine the effect of a prior order of the bankruptcy court." See Dkt. 39 (emphasis added). Nor does the Court disagree with the In re Harris Pine Mills ruling. Rather, neither case is applicable to the causes of action here. In re Franklin is not analogous as that case dealt with the effect of a previous order on the automatic stay, and In re Harris Pine Mills only addressed the issue of a purchaser of bankruptcy assets suing a Trustee for misconduct post-petition. By contrast, Plaintiff, is not suing a trustee for misconduct, let alone for any misconduct of the parties during the bankruptcy. Additionally, the court in In re Harris Pine Mills only articulated that the bankruptcy was "post- petition," and therefore was presumably not post-confirmation and more significantly the bankruptcy was not closed.
Instead, Plaintiff’s attempt to stretch the holdings of In re Franklin and In re Harris Pine Mills to characterize the parties’ actions as arising out of this Court’s sale orders
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and thus necessarily requiring the Court’s interpretation or effectuation of its orders are strikingly similar to those of the appellants in Gupta v. Quincy Med. Ctr., 858 F.3d 657 (1st Cir. 2017). In Gupta, the Appellants argued that "their state claims "arise in" Debtors' bankruptcy case because, "but for" Debtors' Chapter 11 case and the Sale Order approving the sale of Debtors' assets to Steward in the APA, their claims for severance pay would not exist." Gupta, 858 F.3d at 664 (quotations in original). The court rejected their argument and held the bankruptcy court had no subject matter jurisdiction, noting that "arising in" jurisdiction was a "narrow category." Id. at 666. The Gupta court’s analysis is decidedly relevant to the Plaintiff’s arguments:
This argument misapprehends the relevant law. As we have explained, it is not enough for "arising in" jurisdiction that a claim arose in the context of a bankruptcy case. Instead, our case law makes clear that for "arising in" jurisdiction to apply, the relevant proceeding must have "no existence outside of the bankruptcy." Hence, there is no "but for" test for "arising in" jurisdiction as Appellants suggest. That is, "the fact that a matter would not have arisen had there not been a bankruptcy case does not ipso facto mean that the proceeding qualifies as an ‘arising in’ proceeding." Instead, the fundamental question is whether the proceeding by its nature, not its particular factual circumstance, could arise only in the context of a bankruptcy case. In other words, it is not enough that Appellants' claims arose in the context of a bankruptcy case or even that those claims exist only because Debtors (Appellants' former employer) declared bankruptcy; rather, "arising in" jurisdiction exists only if Appellants' claims are the type of claims that can only exist in a bankruptcy case.
. . .
Appellants here have failed to identify any provision of the Sale Order itself or any related questions of bankruptcy law underlying their claims that would require interpretation by the bankruptcy court. Indeed, the bankruptcy court's own analysis of Appellants' claims was based entirely on the terms of the APA and state contract law. The court mentioned the Sale Order only in reference to the retention-of- jurisdiction provision.
Therefore, a court deciding Appellants' claims on the merits would only need to perform a state law breach of contract analysis. As the district court explained, Appellants' claims "look like ones that could have arisen entirely outside the bankruptcy context. They are essentially employment disputes that could arise in any asset sale, regardless of whether the sale involved a bankruptcy proceeding." Appellants' claims are therefore not merely "framed as state law claims," but are claims which may be decided solely under Massachusetts law.
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Id. at 664-65 (internal citations omitted) (emphasis added).
Here, having reviewed the motions for summary judgment, the Court determines that the central question that Plaintiff’s case turns on is whether Bojorquez holds an interest in Parcel 3 that clouds title as a result of the DOT and Note Assignment.
Although the complaint also proceeds against ConCap, the determination of ConCap’s alleged interest in the Parcels appears to arise because of reconveyances which contain a warning that the reconveyances may be legally insufficient because of Bojorquez’s interest, and thus is ensnared with the main issue. Either way, this determination does not involve any bankruptcy law analysis.
Although Plaintiff consistently refers to ConCap’s violation of the 2003 Sale Order in an attempt to characterize the action as necessarily implicating the Court’s orders, none of the parties’ causes of action are moving forward on the basis that the Court’s 2003 Sale Order was violated (and in any case per the OSC hearings, Plaintiff was implicated with ConCap in the out of court settlement). More significantly, Plaintiff’s and Bojorquez’s briefs both fail to "identify any provision" of this Court’s orders, "or any related questions of bankruptcy law underlying their claims that would require interpretation by the bankruptcy court." See Gupta, 858 F.3d at 665.
For the Court to decide the issue, as identified above, on the merits, it would require only an analysis of state laws for quiet title, which would necessarily implicate laws of negotiable instruments with respect to Bojorquez’s property interest. Therefore, Plaintiff’s action can only be characterized as a state court action to determine whether he is the sole owner of Parcel 2, and more importantly Parcel 3, whether the cause of action is styled as a declaratory judgment, an injunction, or an action to quiet title. Moreover, to the extent it is meaningful, Bojorquez’s cross claims for conversion, unjust enrichment, and constructive trust do not either implicate any bankruptcy law, only requiring a state law analysis to decide the merits.
Accordingly, it is insufficient that the parties "claims arose in the context of a bankruptcy case or even that those claims exist only because" of Devore Stop’s bankruptcy; "rather "arising in" jurisdiction exists only if [the parties] claims are the type of claims that can only exist in a bankruptcy case." See id. Therefore, as both
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Plaintiff’s complaint and Bojorquez’s cross-complaint are "state law claim[s] that could exist outside of bankruptcy and [are] not inextricably bound to the claims allowance process or a right created by the Bankruptcy Code," they cannot "be deemed a core proceeding." See In re Harris Pine Mills, 44 F.3d at 1438 accord In re DeLorean Motor Co., 155 B.R. 521 (9th Cir. BAP 1993); see also In re Wood, 825 F.2d at 96.
As an aside, with respect to Plaintiff’s argument that the Court previously acknowledged its jurisdiction over the effect of prior orders, to the extent the issues here required any determination of the Court’s prior orders, those have already been resolved during the Court’s OSC proceedings where the Court approved Bojorquez’s employment in 2019, thereby allowing him to prosecute whatever claims and rights he may have pursuant to the DOT and Note Assignment. In its order, the Court explicitly stated the value, if any, of those Assignments were to be determined under state law.
Therefore, neither the Plaintiff’s actions nor Bojorquez’s cross claims are core matters. Thus, the Court next considers whether they fall within non-core proceedings.
Non-Core Proceedings/ "Related to" Jurisdiction
"Non-core" proceedings are those that do not depend on the bankruptcy laws for their existence and that could proceed in another court even in the absence of bankruptcy. In re Wood, 825 F.2d at 96. These proceedings must be "related to" the bankruptcy case. See § 28 U.S.C. 157(c)(1). Related to jurisdiction cases contain two subsets: (1) causes of action owned by the debtor that become property of the estate under § 541; and (2) suits between third parties which in one way or another affect the administration of the bankruptcy case. Celotex Corp. v. Edwards, 514 U.S. 300, 307 (1995). A bankruptcy court may hear a non-core proceeding and issue a final judgment if the parties consent, otherwise the judge must submit proposed findings of fact and conclusions of law to the district court for final order to be entered by the district judge. 28 U.S.C. 157(c)(1), (2).
The primary test for "related to" jurisdiction is the Third Circuit’s Pacor test:
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The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action . . . and which in any way impacts upon the handling and administration of the bankrupt estate.
Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir. 1984) (emphasis added). The First, Fourth, Fifth, Sixth, Eight, Ninth, Tenth, and Eleventh Circuits have adopted the Pacor test with little or no variation. The Second and Seventh Circuits, on the other hand, seem to have adopted a slightly different test. But whatever test is used, these cases make clear that bankruptcy courts have no jurisdiction over proceedings that have no effect on the estate of the debtor. Celotex, 514 U.S. at 308 n.6 (citations omitted).
The Ninth Circuit has since limited the Pacor "related to" test to pre-confirmation matters and imposed the "close nexus" test, a more demanding test for post- confirmation matters. See In re Pegasus Gold Corp., 394 F.3d 1189, 1194 (9th Cir. 2005) ("We agree that post-confirmation bankruptcy court jurisdiction is necessarily more limited than pre-confirmation jurisdiction, and that the Pacor formulation may be somewhat overbroad in the post-confirmation context. Therefore, we adopt and apply the Third Circuit's "close nexus" test for post-confirmation "related to" jurisdiction . . . ."). The "close nexus" test requires that the matter directly affect the bankruptcy proceeding for subject matter jurisdiction to be present. See id; see In re Valdez Fisheries Dev. Ass'n, Inc., 439 F.3d 545, 548 (9th Cir. 2006) ("…matters affecting the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus").
Here, as explained above, although Plaintiff attempts to characterize the action as one that affects the bankruptcy estate because it "arises" due to circumstances surrounding the sale of estate property in 2003, his cause of action proceeds under a theory of quiet title, a state law claim. Additionally, even if the Court could determine the status of title by somehow avoiding Bojorquez’s pure state law issues, it would have no effect on the bankrupt estate, as the case was closed over ten years ago and any recovery would not go to a debtor, a creditor, or the defunct estate.
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To the extent Bojorquez attempts to characterize himself as a creditor of the bankruptcy estate who is due commission from the estate, the Court has already ruled that his payment is in the form of the DOT Assignment and Note Assignment, whatever value it holds. Determining what, if any, rights the Assignments have, as the Court explained at the August 21, 2019 hearing, requires the Court to determine Bojorquez’s rights in instruments created by state law against non-debtor parties, Plaintiff and ConCap, and has no bearing on an already administered, effectuated, and closed bankruptcy.
As such, all the parties’ actions lack the requisite "close nexus" to the administration of the estate. See In re Valdez Fisheries Dev. Ass'n, Inc., 439 F.3d at 548 ("…matters affecting the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus").
Consequently, none of the parties’ actions fall within the definition of "related to" jurisdiction. See In re Pegasus Gold Corp., 394 F.3d at 1194. Because the Court finds that the actions do not fall within the Court’s authority to hear non-core proceedings, Plaintiff and Bojorquez’s request that the Court hear the matter and issue conclusions of law and fact to refer it to the district court is inapplicable. See 28 U.S.C. 157(c)(1), (2).
The Court next entertains "retained" jurisdiction.
Retained Jurisdiction
Generally, the closing of a bankruptcy case should result in the dismissal of all remaining adversary proceedings. In re Pocklington, 21 B.R. 199, 202 (Bankr. S.D. Cal. 1982); accord In re Rush, 49 B.R. 158 (Bankr. N.D. Ala. 1985) (emphasis added). This is particularly true of adversary proceedings which are "related to" the bankruptcy case because related proceedings can only be heard by a bankruptcy court because of their nexus to the debtor’s bankruptcy case. See generally Pacor, 743 F.2d 984. Retaining jurisdiction over "related to" adversary proceedings is discretionary and based on principles of equity and judicial economy. See, e.g., In re Smith, 866 F.2d 576, 580 (3rd Cir. 1989) ("Drawing upon an analogy to the disposition of ancillary and pendent claims, the courts have held that they may consider a number of factors to determine whether jurisdiction should be retained.").
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Such discretion appears to only apply where adversary complaints were filed before the bankruptcy estate is closed. See In re Bass, 171 F.3d 1016, 1023-242 (5th Cir. 1999)("[B]efore a court can exercise its discretion to ‘retain’ jurisdiction over a ‘related proceeding,’ the court must have had jurisdiction over that proceeding in the first place. The Denneys did not file their suit in Texas until after the bankruptcy case in Utah had been closed. From a purely temporal standpoint, there was no proceeding over which bankruptcy court jurisdiction could be ‘retained.’"). As such, where the action does not have a "close nexus" to the estate, a bankruptcy court lacks jurisdiction over actions filed after the underlying bankruptcy is closed.
Moreover, "[b]ecause bankruptcy court jurisdiction is conferred by statute, parties to litigation cannot confer subject matter jurisdiction where none exists." In re Nobel Group, Inc., 529 B.R. 284, 291 (Bankr. N.D. Cal. 2015). Therefore, explicit retention of jurisdiction provisions are only valid to the extent there is an independent basis to support bankruptcy court jurisdiction. The court in In re Resorts Int’l clearly articulates this:
Retention of jurisdiction provisions will be given effect, assuming there is bankruptcy court jurisdiction. But neither the bankruptcy court nor the parties can write their own jurisdictional ticket. Subject matter jurisdiction "cannot be conferred by consent" of the parties. Where a court lacks subject matter jurisdiction over a dispute, the parties cannot create it by agreement, even in a plan of reorganization.
Similarly, if a court lacks jurisdiction over a dispute, it cannot create that jurisdiction by simply stating it has jurisdiction in a confirmation or other order. Bankruptcy courts can only act in proceedings within their jurisdiction. If there is no jurisdiction under 28 U.S.C. § 1334 or 28 U.S.C. § 157, retention of jurisdiction provisions in a plan of reorganization or trust agreement are fundamentally irrelevant. But if there is jurisdiction, we will give effect to retention of jurisdiction provisions.
372 F.3d at 161 (citations omitted).
As the parties’ complaints were filed in 2012 and 2013, three and four years after the bankruptcy estate was closed, the Court has no discretional authority to retain jurisdiction, as it never exercised jurisdiction over the action during bankruptcy. See In re Bass, 171 F.3d at 1023-242. Furthermore, the Court’s express retention of jurisdiction in the 2007 Sale Order is only valid to the extent it is enforceable under the statutes 28 U.S.C. §§ 1334 and 157. See In re Resorts Int’l 372 F.3d at 161. The
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provision allowing Plaintiff or any party in interest to bring an action to determine the validity of liens is only valid to the extent it still falls within the bankruptcy court’s jurisdiction. As analyzed above, the Court’s potential analysis of the parties’ issues on the merits would not fall within either bases of the Court’s jurisdiction, whether core or related. Additionally, the two provisions numbered (2) and (4) in the 2007 Sale Order that could conceivably provide a basis to hear the additional dispute between Bojorquez and ConCap are invalid because it retains "related to" jurisdiction that cannot possibly lie after a chapter 7 case is closed, as, in this case, there is no "close nexus" between the closed bankruptcy and an after-filed adversary. See In re Pegasus Gold Corp., 394 F.3d at 1194.
Accordingly, the Court finds it has no authority to retain jurisdiction.
As the Court noted Bojorquez submitted briefly, without referring to any legal authority, that ConCap’s purchase of the Notes violated the automatic stay.
Therefore, the Court finds it necessary to clarify the effect of the automatic stay to prevent further unsupported assertions.
The automatic stay bars any act to "create, perfect or enforce any lien against property of the estate." 11 U.S.C. § 362(a)(4). The issue of whether this provision applies to stay assignments of notes and deeds of trusts and any subsequent recording of those assignments has been addressed by the court in In re Samuels:
The postpetition assignment of a mortgage and the related note from one holder to another is not a transfer of property of the estate. The mortgage and note are assets of the creditor mortgagee, not of the Debtor. Nor is the postpetition assignment of a mortgage and the related note an act to collect a debt; the assignment merely transfers the claim from one entity to another. The Debtor cites no particular subsection of 11 U.S.C. § 362(a), the automatic stay, that she contends such an assignment violates, and the court is aware of none.
I need not address the Debtor's further unsupported contention that the postpetition recording of an assignment of mortgage is a violation of the automatic stay13 or of 11
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U.S.C. § 549(a). As the Debtor herself acknowledges, an assignment of mortgage need not be recorded in order to be valid against the mortgagor or her
grantees. Lamson & Co. v. Abrams, 305 Mass. 238, 241–242, 25 N.E.2d 374
(1940); O'Gasapian v. Danielson, 284 Mass. 27, 32, 187 N.E. 107 (1933). Therefore, even if the recording were void and ineffectual, the assignment to Deutsche Bank would still be valid.
415 B.R. 8, 22-23 (Bankr. D. Mass. 2009) (citations in original). See also In re Halabi, 184 F.3d 1335 (C.A.11 (Fla.),1999) ("But the assignment of the perfected mortgage—from Republic to Farragut, from Farragut to Atlantic and, finally, from Atlantic to Federal—did not involve the transfer of any property belonging to the debtor or to the debtor's estate. In each instance, the assignment was merely the transfer of one mortgagee's interest to a successor mortgagee.").
The court in In re Sprouse specifically addressed the recording of an assignment after the stay is in place, holding it was permitted:
Plaintiff's claim that the assignment and/or recording of the assignment is an "act to create, perfect, or enforce any lien against property of the estate" is unsupported based on the plain language of § 362. An assignment does not create a lien; rather, it is the original execution of the deed of trust that creates the lien and the original recording that perfects the lien. Neither an assignment nor the recording of an assignment constitutes an enforcement of the lien, which could only be enforced through a foreclosure. At most, an assignment would only give the assignee the right to enforce the lien or indebtedness. The automatic stay provisions of the Bankruptcy Code do not prohibit a creditor of a debtor from transferring any interest or claim it might have against the debtor’s bankruptcy estate to a third party. Such a transfer merely substitutes the party that holds the interest or claim against the debtor’s bankruptcy estate, and such transfer does not serve to increase or decrease the interest or claim the party asserts against the debtor’s bankruptcy estate."
In re Sprouse, No. 09-31054, 2014 WL 948490, at *4 (Bankr. W.D.N.C. Mar. 11, 2014) (citations and quotations omitted).
As mortgages and notes are not considered assets of the Debtor’s estate, rather they are assets of the creditor, there is no violation of the stay where Wells Fargo sells its Notes to ConCap or ConCap assigns its rights under the Notes to Bojorquez.
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VI. TENTATIVE RULING
In accordance with the above analysis, the Court having determined it does not have subject matter jurisdiction over the parties’ motions, the Court is inclined to DISMISS:
-Plaintiff’s Complaint
-Bojorquez’s Cross Complaint
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
American Business Investments Represented By
1:00 PM
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
EH
(Tele. apr. Reid Winthrop, rep. Plaintiff William G. 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
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
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
1:00 PM
Adv#: 6:12-01498 Morschauser v. Continental Capital LLC et al
EH
(Tele. apr. Reid Winthrop, rep. Plaintiff William G. 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
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
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
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, 11/10/20,12/9/20,12/22/20,
3/24/21
EH
(Tele. apr. Reid Winthrop, rep. Plaintiff William G. 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
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
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, 11/10/20,12/9/20,12/22/20,
3/24/21
EH
(Tele. apr. Reid Winthrop, rep. Plaintiff William G. 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
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, 11/25/20,12/2/20,2/17/21
EH
(Tele. appr. Misty Petty Isaacson, rep. Defendants, OIC Medical Corporation)
Docket 1
- NONE LISTED -
Debtor(s):
Douglas J Roger, MD, Inc., A Represented By Summer M Shaw Michael S Kogan George Hanover
2:00 PM
Defendant(s):
OIC MEDICAL CORPORATION, a Represented By
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
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, 7/29/20, 9/30/20,
11/25/20,12/2/20,2/17/21
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
2:00 PM
BLACK AND WHITE INK Pro Se
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#: 6:14-01248 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, 11/25/20,12/2/20,2/17/21
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,
11/25/20,12/2/20,2/17/21
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#: 6:20-01171 Daff (TR) v. Karadas
From: 12/16/20,1/20/21 EH
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#: 6:21-01021 STEVEN M. SPEIER, solely in his capacity as Chapte v. Baer et al
W. Baer, Kimberly A Baer, Laura Losquardo, HBall Properties, LLC. ($350.00 Fee Charge To Estate). Complaint: 1. To Avoid And Recover Preferential Transfers Pursuant to 11 U.S.C. §§ 547 AND 550; 2. To Avoid And Recover Fraudulent Transfers Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(A), AND 550, AND CALIFORNIA CIVIL CODE §§ 3439.04(a)(1); 3. To Avoid And Recover Fraudulent Transfers Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(B) AND 550, and California Civil Code §§ 3439.04(a)(2) and 3439.05; 4. To Recover and Preserve Transfers For The Benefit Of The Estate Pursuant to 11 U.S.C. § 551;
5. To Recover Fraudulent Transfers Pursuant to 11 U.S.C. § 550(a); and 6. Breach Of Fiduciary Duty Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)) (Goe, Robert)
EH
(Tele. appr. Robert Goe, rep. Planitiff, Steven Speier)
(Tele. appr. Louis Esbin, rep. Defendants, Harold Baer and Laura Losquadro)
Docket 1
- NONE LISTED -
Debtor(s):
Daisy Wheel Ribbon Co., Inc. Represented By Louis J Esbin
2:00 PM
Defendant(s):
Harold W. Baer Pro Se
Kimberly A Baer Pro Se
Laura Losquardo Pro Se
HBall Properties, LLC Pro Se
Plaintiff(s):
STEVEN M. SPEIER, solely in his Represented By
Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
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, 10/28/20,12/23/20, 2/17/21
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
2:00 PM
Adv#: 6:20-01192 Price v. Salem et al
From: 2/3/21 EH
(Tele. appr. David Weil, rep. Plaintiff, David Price)
Docket 1
- NONE LISTED -
Debtor(s):
Amjad Yousef Salem Represented By Brian J Soo-Hoo
Defendant(s):
Amjad Yousef Salem Pro Se
Lina Amjad Salem Pro Se
Joint Debtor(s):
Lina Amjad Salem Represented By Brian J Soo-Hoo
Plaintiff(s):
David Price Represented By
David Weil
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtor, Tracy Crooks)
Docket 137
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
- NONE LISTED -
11:00 AM
Debtor(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Movant(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Placed on calendar by order signed 3/31/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Michael Smith, rep. Debtor, Margarito Martinez)
Docket 36
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
- NONE LISTED -
11:00 AM
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
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joanne Andrew, specially appearing for Debtor, Jaime Gonzlez)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated
11:00 AM
( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
- NONE LISTED -
Debtor(s):
Jaime Mendez Gonzalez Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Joseph Roberts, rep. Debtor, Erik Liebherr)
Docket 24
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
11:00 AM
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
- NONE LISTED -
Debtor(s):
Erik L. Liebherr Represented By
Joseph Arthur Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Natalie Alvarado, rep. Debtor, Carl Collins)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
11:00 AM
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
- NONE LISTED -
Debtor(s):
Carl A Collins Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jackie Geller, rep. Debtor Mary Reeves)
Docket 19
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
11:00 AM
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
- NONE LISTED -
Debtor(s):
Mary S Reeves Represented By Jackie R Geller
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
11:00 AM
- NONE LISTED -
Debtor(s):
Augusto Mora Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
11:00 AM
- NONE LISTED -
Debtor(s):
Jerry David Ayala Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10, 11 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 24
NONE LISTED -
NONE LISTED -
Debtor(s):
Crucita Cruz Cruz Represented By Dana Travis
Movant(s):
Crucita Cruz Cruz Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #11 From: 4/1/21 EH
(Tele. appr. Donna Travis, rep. Debtor, Crucita Cruz) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 14
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
11:00 AM
Debtor(s):
Crucita Cruz Cruz Represented By Dana Travis
Movant(s):
Crucita Cruz Cruz Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #10 EH
(Tele. appr. Donna Travis, rep. Debtor, Crucita Cruz) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 6
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
11:00 AM
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
NONE LISTED -
Debtor(s):
Crucita Cruz Cruz 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. Kevin Mahan, rep. Debtors, Adam & Ann Smith) (Tele. appr. Ann Dee Smith, Joint Debtor)
(Tele. appr. Adam Smith, Debtor)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
11:00 AM
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
NONE LISTED -
Debtor(s):
Adam Lee Smith Represented By Kevin M Mahan
Joint Debtor(s):
Ann Dee Smith Represented By Kevin M Mahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 2
Appearances:
Consent Calendar
( ) Confirmed per Tr's recommendation-Plan provisions:% to pay
Duration
Payment $
( ) Continued to at 11:00 a.m.
341 (a) to at
( ) Objection: ( ) Withdrawn ( ) Sustained ( ) Overruled ( ) Interlineated ( ) Case Dismissed
( ) without prejudice ( ) Under § 109(g)
( ) if conversion to chapter 7 not filed and fee paid within 10 days
Evidentiary Hearing Set:
11:00 AM
NONE LISTED -
Debtor(s):
Monica Galvan Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Donna Travis, rep. Debtor, Patricia Morales) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 117
NONE LISTED -
NONE LISTED -
Debtor(s):
Patricia Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Donna Travis, rep. Debtor, Alfredo Pena) (Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 92
NONE LISTED -
NONE LISTED -
Debtor(s):
Alfredo Pena Represented By
Dana Travis Milton Williams
Joint Debtor(s):
Veronica Pena Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Joanne Andrew, rep. Debtor, Jorge Sosa)
Docket 52
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Jorge Avendano Sosa Represented By Jaime A Cuevas Jr.
11:01 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joanne Andrew, rep. Debtor, Griseldo Rodriguez)
Docket 32
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Griseldo Rodriguez Represented By Jaime A Cuevas Jr.
11:01 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 93
NONE LISTED -
NONE LISTED -
Debtor(s):
Jose Alberto Lara-Pena Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Yanisleidy Sanchez-Quinonez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 49
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
11:01 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 50
NONE LISTED -
NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Chantal Van Ongevalle, rep. Debtors, Dana Pettus and Andrea Doster)
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 49
APPEARANCES:
ORDER BY ATTORNEY ORDER BY CHAMBERS
GRANTED: DENIED:
CONT'D. TO:
WITHDRAWN:
OBJ SUSTAINED: OBJ OVERRULED:
EVIDENTIARY HEARING SET:
NONE LISTED -
Debtor(s):
Dana Edward Pettus Represented By
11:01 AM
Raj T Wadhwani
Joint Debtor(s):
Andrea Lynn Doster Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 57
NONE LISTED -
NONE LISTED -
Debtor(s):
Paul Trevino Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 75
NONE LISTED -
NONE LISTED -
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 72
NONE LISTED -
NONE LISTED -
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. apr. Nathan Fransen, rep. Debtors, Nagazaki and Veronica Lung)
Docket 47
NONE LISTED -
NONE LISTED -
Debtor(s):
Nagazaki Lung Represented By Nathan Fransen
Joint Debtor(s):
Veronica Lung Represented By Nathan Fransen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 40
NONE LISTED -
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 52
NONE LISTED -
NONE LISTED -
Debtor(s):
Nery B. Mejia Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 57
NONE LISTED -
NONE LISTED -
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
12:00 PM
Docket 5
Debtor(s):
Alondra Guerrero Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: NATIONSTAR MORTGAGE
From: 3/2/21 EH
(Tele. appr. Dane Exnowski, rep. creditor, Nationstar Mortgage)
Docket 84
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Rodolfo Aguiar Represented By Alla Tenina
Joint Debtor(s):
Irma D Aguiar Represented By Alla Tenina
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski Arnold L Graff
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Sheryl Ith, rep. creditor, AmeriCredit Financial Services, Inc.)
Docket 91
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.
11:00 AM
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 no proceeding has of yet been commenced, the remainder of the factors weigh in favor of relief from stay being granted because Movant "seeks recovery primarily from third parties and agrees that the stay will remain in effect as to the enforcement of any resulting judgment against the Debtor." Because Movant is not seeking to recover from Debtors or the bankruptcy estate, granting relief from stay 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)
-GRANT waiver of Rule 4001(a)(3) stay
-GRANT request 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):
Jose Diaz Represented By
Nima S Vokshori
Joint Debtor(s):
Betty Diaz Represented By
Nima S Vokshori
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
3500H; VIN NO. 1GC4C0EY6HF241884 with Exhibits and Proof of Service MOVANT: BANK OF AMERICA
EH
(Tele. appr. Robert Zahradka, rep. creditor, Bank of America)
Docket 34
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 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):
Rebeca Olivas Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
11:00 AM
0294-081-55, 56, 57; 471-110-010,011,012,013,015,018,019,020; 471-130-001,
002;471-140-001, 002, 005, 007)
MOVANT: LINKAGE FINANCIAL GROUP, INC.
EH
Docket 93
NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury - SUSPENDED -
Trustee(s):
Larry D Simons (TR) Represented By Nancy H Zamora
11:00 AM
MOVANT: EXETER FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. Exeter Finance LLC)
Docket 9
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 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 Elena Sigala Represented By Reiko J Hicks
Joint Debtor(s):
BENJAMIN RAMIREZ SIGALA Represented By
11:00 AM
Trustee(s):
Reiko J Hicks
Larry D Simons (TR) Pro Se
11:00 AM
MOVANT: BANK OF THE WEST
EH
(Tele. appr. Mary Ellmann Tang, rep. Bank of the West)
Docket 15
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 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):
Douglas L Norris Represented By Maryann Briseno
Joint Debtor(s):
Cynthia K Norris Represented By
11:00 AM
Trustee(s):
Maryann Briseno
Lynda T. Bui (TR) Pro Se
2:00 PM
Also #8, 9 From: 3/30/31 EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. Marc Lieberman, rep. John Larson) (Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
Docket 528
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Movant(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer
2:00 PM
Trustee(s):
Victor A Sahn Steven Werth
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Also #7, 9
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, 9/30/20, 1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
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
2:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Also #7, 8
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, 9/30/20,1/12/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
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
2:00 PM
Steven Werth
2:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
(HOLDING DATE)
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, 9/28/20,1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. David Goodrich, trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
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
2:00 PM
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
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,
(HOLDING DATE)
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, 9/30/20/1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. David Goodrich, Plaintiff)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
Recovery of money/property - 548 fraudulent transfer
(HOLDING DATE)
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, 9/30/20,1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. Marc Lieberman, rep. Defendant, John Larson) (Tele. appr. David Goodrich, Plaintiff)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
Docket 1
NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
2:00 PM
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
Adv#: 6:18-01114 David M. Goodrich, Chapter 11 Trustee v. The Blue Law Group, Inc, a
HOLDING DATE
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, 9/30/20,1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
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
2:00 PM
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 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,
9/30/20,1/13/21, 3/30/21
EH
(Tele. appr. Kenneth Hennesay, Jr., rep. creditor, Cambridge Medical Funding Group II, LLC)
(Tele. appr. David Goodrich, Plaintiff)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 trustee)
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
2:00 PM
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
10:00 AM
EH
Docket 13
NONE LISTED -
Debtor(s):
Zulma Lopez Represented By
Richard Mark Garber
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 16
NONE LISTED -
Debtor(s):
Angelina Vasquez Represented By Gary S Saunders
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 11
NONE LISTED -
Debtor(s):
Gabriel Zepahua Mendoza Represented By Judy P Hsu
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 11
NONE LISTED -
Debtor(s):
Heriberto Hernandez Cuevas Represented By Irma C Coler
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 10
NONE LISTED -
Debtor(s):
Sandra G Garcia Represented By Daniel King
Trustee(s):
Larry D Simons (TR) Pro Se
10:00 AM
(Vehicle description, annual percentage rate, and amount financed not detailed in Reaffirmation Agreement)
EH
Docket 6
NONE LISTED -
Debtor(s):
Kathryn Jean Gomez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Arturo Cisneros, chapter 7 trustee)
Docket 28
5/5/2021
Service proper No opposition
On April 14, 2021 Trustee filed the instant motion seeking an order to abandon the estate’s assets in case 6:18-11895 filed by Debtor Rosendo Adaiberto Lobos on March 9, 2018. 11 U.S.C. § 554(a) states:
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.
As set forth in the motion, there being no unsecured claims to disburse the $7,706.76 funds Trustee holds, the funds are of inconsequential value to the estate. As such, the Court is inclined to GRANT the motion, ordering the funds to be abandoned to Debtor less any payment of bond and bank fees.
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):
Rosendo Adaiberto Lobos Represented By Neil R Hedtke
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
(Tele. appr. Matthew Kennedy, rep. chapter 7 trustee)
Docket 40
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee and Attorney have been set for hearing on the notice required by LBR 2016-1. At the initial hearing on March 3, 2021, the Court was inclined to disallow attorney fees and reduce Trustee’s compensation, noting Trustee, without Court approval, had entered into a compromise to sell the estate’s interest in Debtor’s residence. Having now approved that compromise retroactively by order entered on April 1, 2021, and 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: $ 2,150 Trustee Expenses: $ 92.36
Attorney Fees: $ 6,203.51 Attorney Expenses: $ 207.15
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):
Nelly Guadalupe Seneff Represented By Todd L Turoci
Trustee(s):
Karl T Anderson (TR) Represented By Robert A Hessling
11:00 AM
Docket 35
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: $ 550 Trustee Expenses: $ 0
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 Jimenez Represented By
Tristan L Brown
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
(Tele. appr. Tinho Mang, rep. chapter 7 trustee)
Docket 30
NONE LISTED -
Debtor(s):
Luis Alberto Pineda-Mata Represented By Todd L Turoci
Trustee(s):
Charles W Daff (TR) Represented By Chad V Haes Tinho Mang
D Edward Hays
2:00 PM
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
From: 10/28/20,3/31/21 EH
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
HOLDING DATE
Also #13
From: 12/18/19, 5/20/20, 9/9/20,11/4/20,12/2/20,1/6/21,2/3/21
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
HOLDING DATE
Also #12
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20,11/4/20, 2/2/20,1/6/21,2/3/21
EH
(Tele. appr. Douglas Plazak, rep. Plaintiff, Robert Whitmore)
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, 12/2/20,1/6/21,2/3/21
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
Adv#: 6:20-01006 Eggleston et al v. Ramirez
Also #16
From 10/7/20, 10/14/20,11/18/20,2/3/21 EH
(Tele. appr. Scott Talkov, rep. Defendant, Connie Ramirez)
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
2:00 PM
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
Also #15 EH
(Tele. appr. Scott Talkov, rep. Defendant, Connie Ramirez)
Docket 82
5/5/2021
Service proper Opposition filed
On October 24, 2019, Corinne Lara Ramirez ("Defendant") filed a Chapter 7 voluntary petition. On October 5, 2020 the order of discharge was entered closing the bankruptcy case on October 6, 2020.
While the bankruptcy was still proceeding, on January 22, 2020, David Eggleston, Karin Doerr, Richard Alvarado, and Yan Sum Alvarado ("Plaintiffs") filed a non- dischargeability complaint ("Complaint") against Defendant pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6). On October 2, 2020, Plaintiffs filed a motion for leave to amend. The hearing was held on November 18, 2020, in which the Court orally granted the Plaintiff’s request.
On December 1, 2020, Plaintiffs filed the first amended complaint ("FAC"). On December 3, 2020, the Court entered an order granting Defendant’s first motion to dismiss as to the § 523(a)(6) second cause of action and denying Defendant’s motion
2:00 PM
as to the § 523(a)(2)(A) first cause of action, granting Plaintiffs leave to amend the first cause of action.
On December 23, 2020, Defendant filed a second motion to dismiss arguing the allegations in the FAC do not meet the heighted pleading requirement of FED. R. CIV. P. Rule 9(b). The Court granted Defendant’s motion with leave to amend pursuant to order entered on February 10, 2021.
On February 19, 2021, Plaintiff’s filed the second amended complaint ("SAC"). On March 22, 2021, Defendant filed the instant and third motion to dismiss for failure to state a claim. Plaintiffs opposed on April 1, 2021. On April 28, 2021, Defendant filed a reply.
MOTION TO DISMISS STANDARD
FED. R. CIV. P. Rule 12(b)(6), made applicable in adversary proceedings through FED. R. BANKR. P. Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a FED. R. CIV. P. Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The trial court need not, however, accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Hartman v.
Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under FED. R. CIV. P. Rule 12(b)(6), a plaintiff must aver in the complaint "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under FED. R. CIV. P. Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
2:00 PM
NON-DISCHARGEABILITY STANDARD
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
The elements of a § 523(a)(2)(A) claim are well-established: (a) the debtor made representations; (b) which were known to be false; (c) the representations were made with the intention and purpose of deceiving the creditor; (d) the creditor relied on such representations; (e) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
RULE 9(B) STANDARD
FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)(A) non-dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008). FED. R. CIV. P. Rule 9(b) states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally."
"In order to properly plead fraud with particularity, the complaint must allege the time, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." In re Kimmel, 2008 WL 5076380 at *1. The heightened pleading standard is commonly cited as requiring the allegations to identify "the who, what, when, where, and how of the misconduct charged." See, e.g.
U.S. v. United Healthcare Ins. Co., 848 F.3d 1161, 1167 (9th Cir. 2016); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010); Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
ANALYSIS
The SAC lists two sets of representations. As to the Alvarado Plaintiffs, the only
2:00 PM
alleged false representation made by Defendant that the Court can discern as remotely sufficient is as to the value of the wine, which representation was allegedly made by George Walker in the presence of Defendant (and so Defendant is apparently liable under some theory not elaborated on by Plaintiff that George Walker’s representation was, the Court assumes, somehow adopted by and deemed made also by Defendant through her silence). Aside from the vagueness of that theory and the allegations, however, there is no allegation that Defendant had any knowledge of the value of the wine or that it was vinegar. Moreover, there is no allegation that any such "representation" by Defendant was made with intent to deceive, nor is there any allegation that Plaintiffs relied on that representation or that such representation was reasonable. Thus, and for reasons otherwise set forth in the Defendant’s moving papers, Plaintiff has failed to state a claim with respect to the Alvarado Plaintiffs.
As to the Eggleston and Doerr Plaintiffs, the Court finds that the only somewhat meritorious representation is the following: "Defendant Corinne Lara Ramirez stated that she knew how to operate a wine business and had a complete knowledge of the financial and operating aspects of the wine making industry." [SAC ¶ 6]. While the statement lacks detail to support her alleged knowledge, the Court disagrees with Defendant that this is mere "puffing" given that the representation related to Defendant’s knowledge and experience specifically in the wine making industry—it was a statement that she had knowledge, not the degree of her knowledge. Moreover, as it was a statement about her own abilities and knowledge, the statement necessarily assumes Defendant’s knowledge of the falsity. However, there is no allegation that the representation was made with the intent to deceive, with allegation of supporting facts, nor is there any allegation that reliance on Defendant’s statement was reasonable, also with allegation of supporting facts. Thus, and for reasons otherwise set forth in the Defendant’s moving papers, Plaintiff has failed to state a claim with respect to the Eggleston and Doerr Plaintiffs.
Given the existence of such material deficiencies notwithstanding having already amended the Complaint twice, and the apparent futility of further amendment, it is the Court’s intention to GRANT the motion to dismiss WITHOUT leave to amend.
APPEARANCES REQUIRED.
2:00 PM
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
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
*Alias summoms issued on 3/3/21 for defendant Veronica Hutchinson Also #18
From: 3/31/21 EH
(Tele. appr. Baruch Cohen, rep. Defendants, Christopher and Veronica Hutchinson)
(Tele. appr. Misty Perry Isaacson, rep. Plaintiffs)
Docket 1
NONE LISTED -
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
2:00 PM
Veronica Aurora Hutchinson Pro Se
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr.
Matthew Cotter Represented By
R Gibson Pagter Jr.
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
EH
(Tele. appr. Baruch Cohen, rep. Defendants, Christopher and Veronica Hutchinson)
Docket 16
5/5/2021
Service proper Opposition filed
On December 8, 2020, Christopher and Veronica Hutchinson ("Debtors") filed a Chapter 7 voluntary petition for bankruptcy. On Schedule E/F, Debtors listed a business debt in the amount of $725,000 to Matthew and Courtney Cotter. Debtors received a discharge on March 15, 2021.
On January 27, 2021, Matthew and Courtney Cotter ("Plaintiffs") commenced adversary proceeding No. 6:21-ap-01015 by filing a complaint for non- dischargeability. Debtors filed their first motion to dismiss on February 25, 2021. On March 2, 2021, Plaintiffs filed a first amended complaint [Dkt. 8] to determinate dischargeability of debt and for declaratory relief re community property liability pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6) ("FAC") mooting Debtors’ motion.
On March 22, 2021, Debtors filed the instant motion to dismiss for failure to state a
2:00 PM
claim pursuant to FED. R. CIV. P. Rule 12(b)(6) and FED. R. CIV. P. Rule 9(b) ("Rule 9(b)"). [Dkt. 16]. On April 21, 2021, Plaintiffs filed an opposition. [Dkt. 21].
MOTION TO DISMISS STANDARD
FED. R. CIV. P. Rule 12(b)(6), made applicable in adversary proceedings through FED. R. BANKR. P. Rule 7012, a bankruptcy court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." In reviewing a FED. R. CIV. P. Rule 12(b)(6) motion, the trial court must accept as true all facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The trial court need not, however, accept as true conclusory allegations in a complaint or legal characterizations cast in the form of factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Hartman v.
Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008).
To avoid dismissal under FED. R. CIV. P. Rule 12(b)(6), a plaintiff must aver in the complaint "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). It is axiomatic that a claim cannot be plausible when it has no legal basis. A dismissal under FED. R. CIV. P. Rule 12(b)(6) may be based either on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008).
NON-DISCHARGEABILITY STANDARD
Plaintiff’s FAC proceeds under a theory of non-dischargeability pursuant to 11 U.S.C.
§§ 523(a)(2)(A) for fraud, (a)(4) for embezzlement, (a)(6) for willful and malicious injury. Specifically, these sections provide:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than
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a statement respecting the debtor’s or an insider’s financial condition;
. . .
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
. . .
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
11 U.S.C. §§ 523(a)(2)(A), (a)(4), (a)(6).
With respect to the first claim, the elements of a § 523(a)(2)(A) claim are well- established: (1) the debtor made representations; (2) which were known to be false;
the representations were made with the intention and purpose of deceiving the creditor; (4) the creditor relied on such representations; (5) the creditor sustained loss and damage as a proximate result of the representations. See, e.g., In re Sabban, 600 F.3d 1219, 1222 (9th Cir. 2010).
To succeed on the second claim for embezzlement, creditor must prove: "(1) the property was rightfully in the possession of a non-owner; (2) the non-owner appropriated the property to a use other than which it was entrusted; and (3) circumstances indicating fraud." In re Laos, 513 B.R. 119, 125 (Bankr. D. Ariz. 2014). A creditor becomes the owner of funds when transferred pursuant to a contract. See In re Wada, 210 B.R. 572, 576 (B.A.P. 9th Cir. 1997) accord
In re Mercer, 169 B.R. 694, 697 (Bankr. W.D. Wash. 1994) ([u]nder federal bankruptcy law, absent agreement to the contrary, a contractor receiving progress payments takes the funds as owner); see also In re Schultz, 46 B.R. 880, 889 (Bankr.
D. Nev. 1985) (Where building contract provides for certain services at certain prices, and there is a transfer of money within the contract price, ownership as well as possession passes, and all that remains is a contractual obligation.).
Last, as to the third claim, creditor must prove that the injury was both willful and malicious. See In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008). "A "willful" injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Id. A "malicious" injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and
is done without just cause or excuse." Id.
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RULE 9(B) STANDARD
As Debtors correctly point out, Rule 9(b) is applicable to a § 523(a)(2)(A) non- dischargeability proceeding. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008). Additionally, where plaintiff alleges a "unified course of fraudulent conduct" and relies entirely on that conduct as the basis of a claim, "the claim is said to be grounded in fraud or to sound in fraud, and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b)." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003) (internal quotations omitted). By contrast, where "fraud is not an essential element of a claim, only allegations ("averments") of fraudulent conduct must satisfy the heightened pleading requirements of Rule 9(b)." Id. at 1105.
Rule 9(b) states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally." "In order to properly plead fraud with particularity, the complaint must allege the time, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations." In re Kimmel, 2008 WL 5076380 at *1. The heightened pleading standard is commonly cited as requiring the allegations to identify "the who, what, when, where, and how of the misconduct charged." See, e.g. U.S. v. United Healthcare Ins. Co., 848 F.3d 1161, 1167 (9th Cir. 2016); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010).
ANALYSIS
As an initial matter, the causes of action in the FAC need to indicate which Defendant each cause is against. With respect to the first claim for fraud, the FAC boils down to two sets of misrepresentations. The first set is grounded in what Christopher was purportedly supposed to do pursuant to a construction contract entered into on September 12, 2018. See FAC ¶ 9, 10, 17 (providing for completion date, type of work, and timely service according to code). However, at some point when Christopher received funds to perform such work under the contract, he instead allegedly kept those funds and did not follow through under the terms of the contract. See FAC¶ 18 ("These material Representations were false in that Christopher kept the
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funds and did not use them for their intended purpose under the Contract."); FAC ¶ 22 ("Christopher abandoned the unfinished project. ).
Essentially, if the Court extrapolates, Plaintiff is attempting to plead that Christopher must have lied to Plaintiffs when entering the contract and accepted payments because in hindsight work was not completed. Although Debtors correctly point out that these are misrepresentations of a promise to do work and are not typically actionable, there is a subset of § 523(a)(2)(A) authority in the Ninth Circuit that validates nondischargeability actions for promissory fraud. See, e.g., Tobin v. Sans Souci Ltd. P'ship (In re Tobin), 258 B.R. 199, 203 (9th Cir. BAP 2001); In re Carlson, 426 B.R. 840, 854 (Bankr. D. Idaho 2010) (“These cases require proof that at the time the promise was made, it was then known to the maker to be false and that there was
no intent or ability to perform the promise.").
Notwithstanding, the Court is inclined to agree with Debtors’ general argument that the FAC does not provide facts to support Plaintiff’s conclusion to the extent required by Rule 9(b). The key element of falsity amounts to the conclusory statement that Christopher did not use the funds for the intended purposes. While arguably plausible, under a Rule 9(b) analysis, the circumstances of the fraud must have sufficient detail, i.e., "the who, what, when, where, and how of the misconduct charged." See United Healthcare Ins. Co., 848 F.3d at 1167. Plaintiffs’ arguments in its opposition are illustrative of the problem with the FAC:
nor
Christopher failed to provide the above noted materials and fixtures to the Plaintiffs
did he return the deposits for the same. As such, it is disingenuous of the Defendants to argue that Plaintiffs have failed to show that Plaintiffs never received the materials and fixtures and Christopher did not return the funds.
[Dkt. 21, pg. 4].
The reason for the Debtors’ argument is apparent in Plaintiffs’ above response—these facts, which may have supported falsity, are not included in the FAC. And this is just one example of the lack of circumstances surrounding the fraud. For example, when was the $98,218 furnished? When and how did Christopher request each amount and make each representation? Under what contract terms or invoices? Before or after some work was completed? At what point after receiving the funds did Christopher
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cease working? Facts purportedly clarifying some of these details appear in Plaintiffs’ opposition, where the Plaintiffs argue that a total of $62,103 was tendered due to invoices falsely misrepresenting the completion of certain steps in the construction process. See [Dkt. 21, pg. nos. 2-3]. Although Plaintiff is correct that Rule 9b does not require a plaintiff to make detailed evidentiary allegations or forecast the evidence that the plaintiff hopes to adduce in discovery or at trial, on the first set of representations alone, the Court cannot find that there is enough specificity for Debtors to "prepare an adequate response to the allegations" to satisfy Rule 9b. See In re Kimmel, 2008 WL 5076380 at *1.
With respect to the second set of misrepresentations that Christopher failed to disclose that his contractor’s license had been revoked [FAC ¶ 13-16], the Court notes an inconsistency between the FAC and Plaintiffs’ opposition. The FAC ¶ 13 states that the license was suspended on November 25, 2018, reinstated, and then revoked on January 10, 2019, however, the opposition states it was suspended on two prior occasions on November 21, 2015 and again on June 19, 2017. [Dkt. 21, pg. 6]. The acknowledgement in the opposition that the disclosure has to be made before the contract date, and the new suspension dates, further illustrate the problem with the FAC.
In addition, FAC ¶ 17 appears incorrect because it defines "Representations" as those in ¶¶ 9, 10, 13, 14. But ¶ 14 is not a representation while ¶ 17 appears to be to be a representation. This apparent error leads to more confusion. For example, ¶ 18 says the Representations are false because Christopher kept the funds, however; this only alleges falsity for some of the Representations, not all. In this view, the Court also notes there is no allegation as to how the Representations in ¶¶ 9, 10 were false.
As to claims two and three for embezzlement and willful and malicious injury, the Court finds neither are sufficient to state a claim. On the embezzlement claim, the FAC includes no allegations that Christopher was a "non-owner" of the funds, rather he received the funds pursuant to a contract, and thus there is no "cognizable legal theory." See In re Laos, 513 B.R. 119, 125 (Bankr. D. Ariz. 2014) (elements of embezzlement); In re Schultz, 46 B.R. 880, 889 (Bankr. D. Nev. 1985) (ownership passes on transfer of money pursuant to a contract); Johnson, 534 F.3d at 1121 (standard for dismissing under Rule 12(b)(6)). With respect to the willful and malicious cause of action, as with the § 523(a)(2)(A) claim, such facts would need to
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be pled with particularity as the claim is grounded in Christopher’s fraud. See Vess, 317 F.3d at 1103–04.
Finally, as to the fourth claim for declaratory relief, Plaintiffs are correct that Debtors have misconstrued the determination sought. 11 U.S.C § 524(a)(3) states that a discharge:
operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect or recover from, or offset against, property of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after the commencement of the case, on account of any allowable community claim, except a community claim that is excepted from discharge under section 523, 1192, 1228(a)(1), or 1328(a)(1), or that would be so excepted, determined in accordance with the provisions of sections 523(c) and 523(d) of this title, in a case concerning the debtor's spouse commenced on the date of the filing of the petition in the case concerning the debtor, whether or not discharge of the debt based on such community claim is waived.
As such, there is a cognizable legal theory to support a declaratory judgment that should the debt be a community claim and excepted from discharge, Plaintiffs could pursue community property in satisfaction of its judgment.
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." See also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) ("Although Rule 15(a) gives the trial court discretion over this matter, we have repeatedly stressed that the court must remain guided by the underlying purpose of Rule 15 . . . to facilitate decision on the merits, rather than on the pleadings or technicalities.") (internal quotation omitted). Given the liberal standard, at this time, the Court will grant leave to amend the claims.
For the foregoing reasons, the Court is inclined to:
- GRANT the motion to dismiss the first, second, and third claims, with leave to
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amend;
- DENY the motion to dismiss the fourth claim. APPEARANCES REQUIRED.
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Matthew Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
Larry D Simons (TR) Pro Se
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Notice of motion and motion for relief from automatic stay with supporting declarations ACTION IN NON-BANKRUPTCY FORUM RE: Riverside Superior Court Case PSC2002569
MOVANT: SUN, LLC
EH
(Tele. appr. James Hodgkins, rep. creditor, Sun, LLC)
Docket 53
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
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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) citing to In re Curtis, 40 B.R. 795, 800 (Bankr. D. Utah 1984) (emphasis added). 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
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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, although 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, particularly the fifth factor, weigh in favor of granting relief from stay 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):
Sun LLC Represented By
Catherine Gayer
Trustee(s):
Howard B Grobstein (TR) Represented By
Ori S Blumenfeld
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Notice of motion and motion for relief from the automatic stay with supporting declarations PERSONAL PROPERTY RE: 2017 Honda Accord, VIN: 1HGC R2F5 9HA2 81496
MOVANT: AMERICAN HONDA FINANCE CORPORATION
EH
(Tele. appr. Vincent Frounjian, rep. creditor, American Honda Finance Corporation)
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):
Juan Navarro-Lagos Represented By Andy Nguyen
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Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Howard B Grobstein (TR) Pro Se
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Notice of motion and motion for relief from the automatic stay with supporting declarations PERSONAL PROPERTY RE: 2015 MERCEDES C CLASS, VIN: 55SW F4JB 7FU0 77120
MOVANT: MECHANICS BANK AUTO FINANCE
EH
(Tele. appr. Vincent Frounjian, rep. creditor, Mechanics Bank Auto Finance)
Docket 13
In relevant part, 11 U.S.C. § 362 states:
(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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor’s statement of intention selects an option to retain the property and continue making payments based on the pre-bankruptcy loan agreement. This option is known as "ride-through" and is not available in this circuit, and as such Debtor cannot properly select it under the statute. See In re Dumont, 581 F.3d 1104 (9th Cir. 2009). The Debtor was required to select to either surrender, redeem the property, or to enter a reaffirmation agreement. See id. As the thirty-day deadline for filing or amending the statement of intention was April 30, 2021, the automatic stay at to the Mercedes has terminated as a matter of law. See 11 U.S.C. § 521(a)(2)(A).
Therefore, the Court is inclined to DENY the motion as MOOT. APPEARANCES REQUIRED.
Debtor(s):
Yvonne Miranda Represented By Freddie V Vega
Joint Debtor(s):
Linda Juarez Represented By
Freddie V Vega
Movant(s):
Mechanics Bank Auto Finance Represented By Vincent V Frounjian
Trustee(s):
Howard B Grobstein (TR) Pro Se
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Notice of Motion and Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay as the Court Deems Appropriate 707 Orchard Street, Coachella, CA 92236
MOVANT: SAMUEL DOMINGUEZ URIBE JR.
EH
(Tele. appr. Sofya Davtyan, rep. Dennison C. Williams, Trustee of the Williams 1980 Trust "B" Whose servicing agent is FCI Lender Services, Inc.)
Docket 10
Debtor had a previous case dismissed on March 18, 2021. 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 required documents and a plan. 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, without detail, Debtor claims that he has taken measures to budget and has obtained the required documents as evidence that the case was filed in good faith. Debtor further explains that he filed the previous case on an "emergency basis" to stop
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a foreclosure, but because he was "out of town," he couldn’t access documents that were required to be filed as part of the petition. The Court notes that in his previous case, Debtor filed a motion to extend the filing deadline, which the Court denied noting a variety of errors with the motion, including a lack of adequate explanation as to the filing delay. The bare bones declaration now submitted by Debtor does not amount to clear and convincing evidence that this case was not filed in bad faith, e.g. merely to temporarily avert the foreclosure as Secured Creditor argues. Additionally, as Secured Creditor, Dennison C. Williams, points out in his opposition filed on May 6, 2021, there appears to be a variety of other issues with respect to the confirmability of a Chapter 13 Plan, such as the failure to: disclose a junior lienholder, fully account for Secured Creditor’s claim, and substantiate Debtor’s income.
To properly determine whether Debtor is likely to successfully complete a Chapter 13 plan, the Court requires more evidence (e.g. detail as to where he was, why he couldn’t access the records, how his finances have changed, etc.). For the foregoing reasons, the Court is inclined to:
-DENY the request to continue the automatic stay. APPEARANCES REQUIRED.
Debtor(s):
Samuel Dominguez Uribe Jr. Represented By Benjamin R Heston
Movant(s):
Samuel Dominguez Uribe Jr. Represented By Benjamin R Heston Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
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Docket 5
- NONE LISTED -
Debtor(s):
Nancy Demara Pro Se
Movant(s):
Nancy Demara Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
Todd A. Frealy (TR) Pro Se
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Docket 240
On June 3, 2014, Dean & Tami Springer ("Debtors") filed a Chapter 7 voluntary petition. On July 7, 2014, Anita Silker filed a proof of claim for an unsecured claim in the amount of $280,000 ("Claim 1"). On September 18, 2014, Anita Silker filed a proof of claim for a priority unsecured claim in the amount of $280,000 ("Claim 7"). And, that same day, Edward and Anita Silker (collectively, "Creditors"); individually, "Anita" and "Edward") filed a proof of claim for an unsecured claim in the amount of 280,000. The Court notes that Claim 1, Claim 7, and Claim 8 all appear to relate to the same debt, and the supporting information filed with Claim 8 is identical to the supporting information filed with Claim 7.
On April 5, 2021, Trustee filed an objection to Claim 1 and Claim 8. Trustee asserts that Claim 7 appears intended to replace Claim 1, Claim 1 was filed without any supporting information, and Claim 8 appears to be a duplicate of Claim 7 and/or Claim 1.
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The Court has not received any opposition to the Trustee’s claim objection.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "The objector must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040 (quoting In re 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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Claim 1 and Claim 8 appear to both be duplicative of Claim 7. As one bankruptcy court has stated:
Section 502(b)(1) contemplates disallowance of a claim, proof which has been filed in a bankruptcy case, to the extent such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for reason other than because such claim is contingent or unmatured. It is axiomatic that one cannot recover for the same debt twice. Therefore, claims that assert a right to payment on the same liability for which payment is sought in another claim filed by the same creditor state no independent right to recovery, and are unenforceable to the extent of the duplication.
In re GGSI Liquidation, Inc., 2016 WL 6808510 at *3 (Bankr. N.D. Ill. 2016) (quotations and citation omitted).
Therefore, Claim 1 and Claim 8 being duplicative of Claim 7, the Court is inclined to sustain Trustee’s objection.
The Court also notes that it deems 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 SUSTAIN the objection, DISALLOWING Claim 1 and Claim 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):
Dean L. Springer Sr. Pro Se
Joint Debtor(s):
Tami Jo Springer Pro Se
Trustee(s):
Larry D Simons (TR) Represented By Richard A Marshack Sarah Cate Hays
D Edward Hays Laila Masud
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From: 4/21/21
(Placed on calendar by order entered 3/25/21) EH
(Tele. appr. Michele Saadeh, rep. creditor, College Square, L.P.)
Docket 33
BACKGROUND
On September 15, 2017, Ghazi Khan Ghori ("Debtor") filed a Chapter 7 voluntary petition. Debtor received a discharge on December 27, 2017. The case was reopened pursuant to order entered on January 7, 2021.
Debtor filed the instant motion seeking to avoid the junior judicial lien held by College Square, L.P. ("Creditor") in the amount of $27,671.60 pursuant to 11 U.S.C. § 522(f) in the property Debtor claims as his homestead located at 14126 Bay Circle, Corona, Riverside, California 92800 ("Bay Circle residence"). The Bay Circle residence is currently encumbered by a first position lien in the amount of
$461,798.40 and a second position lien in the amount of $836,101.70. Per the appraisal, the fair market value is $605,000.
On March 24, 2021, Creditor filed an opposition and request for a hearing arguing that the Bay Circle residence was not Debtor’s homestead at the time of the bankruptcy petition, rather Debtor lived at 21610 Dunrobin way, Yorba Linda, CA 92887 in 2017
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at time of filing bankruptcy ("Dunrobin residence"). The Court set the motion for hearing on March 25, 2021. On April 14, 2021, Debtor filed a reply.
DISCUSSION
11 USC 522(f) allows Debtor to avoid a judicial lien only to the extent it impairs an exemption he is entitled to under § 523(b)(3), which states, in relevant part:
Property listed in this paragraph is--
subject to subsections (o) and (p), any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor's domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor's domicile has not been located in a single State for such 730- day period, the place in which the debtor's domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place;
Accordingly, for Debtor to claim a homestead exemption in the Bay Circle residence, he had to have been domiciled there within the time parameters set by the statute.
Here, the Court finds that Creditor has met its burden to create a dispute as to the homestead status of the Bay Circle residence. Creditor provided a property profile for the Bay Circle residence from 2016 listing Debtor’s mailing address as the Bay Circle residence. In 2016, after a stakeout, Debtor was served at the Dunrobin residence. In 2016 and 2017, Debtor sent his children to school in Yorba Linda. Additionally, a copy of Debtor’s real estate broker license lists the Dunrobin Residence as his address as of March 22, 2021.
Debtor argues that he used the Dunrobin Way residence as only a mailing address to protect his privacy from the tenants renting in the Bay Circle residence. Debtor, however, does not clarify or provide any evidence that he lived at the Bay Circle residence at the time of filing, or at the very least shown it was intended as his primary residence, other than declaring it so. More importantly, Debtor does not explain or dispute why his children were in school in Yorba Linda, rather than Corona. The Court questions if Debtor rented the Dunrobin Way residence during the bankruptcy
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or even owned it. The Court notes a rental or home ownership expenses in the amount of $3,089 on Debtor’s schedule J. Without Debtor residing in the Bay Circle residence at the time of filing, the Court cannot be certain of Debtor’s domicile there, and thus eligibility for the homestead exemption.
As to Debtor’s argument that Creditor’s objection to exemption is asserted years after the 30-day deadline prescribed by FED. BANKR. Rule 4003(b)(1), subsection (d) provides that "[n]otwistanding the provisions of subdivision (b), a creditor may object to a request under §522(f) by challenging the validity of the exemption asserted to be impaired by the lien."
The Court also notes that although a 17-day deadline is generally required to oppose a motion upon notice of opportunity to request a hearing, it is within the Court’s discretion to treat late filings as a waiver to oppose the requested relief. Here, more significantly the opposition is an objection to an exemption claim. Pursuant to LBR 9013(o)(2) claim objections should not be determined through the notice of opportunity for hearing procedure.
Creditor having met its burden to call into question Debtor’s homestead exemption, the Court is inclined to CONTINUE the motion and ORDER supplemental briefing and evidence on the issue of the homestead exemption.
APPEARANCES REQUIRED.
Debtor(s):
Ghazi Khan Ghori Represented By Jerome S Demaree
Movant(s):
Ghazi Khan Ghori Represented By Jerome S Demaree Jerome S Demaree
Trustee(s):
Todd A. Frealy (TR) Pro Se
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EH
Docket 60
On May 30, 2019, Blanca Torres ("Debtor") filed a Chapter 7 voluntary petition. On December 9, 2019, Debtor received a discharge.
On December 12, 2019, Ford Motor Credit Company LLC ("Creditor") filed a proof of claim for a secured claim in the amount of $16,240.56 ("Claim 6"). On April 6, 2021, Trustee filed an objection to Claim 6, requesting that the Court allowed the claim as a secured claim. Trustee also requests an order providing that if Claim 6 is amended, it be deemed untimely.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie
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evidence of the validity and amount of the claim under Federal Rule of Bankruptcy Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "The objector must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
11 U.S.C. § 502(a) provides that: " A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects." Therefore, pursuant to § 502(a), Claim 6 is automatically allowed as a fully secured claim, and Trustee’s motion does not appear to request any
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relief. See generally Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976) ("No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."); see also U.S. Const. art. III, § 2, cl. 1. The Court notes that to the extent Trustee’s motion actually does not request relief, such as by modifying the automatic order of distribution, such request would seem to be inappropriate.
Trustee’s alternative request, that Claim 6 be treated as tardily filed if it is amended, is, on its face, not ripe.
In accordance with the foregoing, the Court is inclined to DENY the motion as not raising a justiciable issue.
APPEARANCES REQUIRED.
Debtor(s):
Blanca Flor Torres Represented By Brian J Horan
Movant(s):
Robert Whitmore (TR) Represented By Hydee J Riggs
Trustee(s):
Robert Whitmore (TR) Represented By Hydee J Riggs
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EH
Docket 27
No opposition has been filed. Service was Improper
Notice of the hearing on the Trustee’s final report was sent out on February 18, 2021, resulting in notice being short one day. Additionally, the Court notes that Trustee entered into a settlement regarding the estate’s interest in Debtor’s vehicles, but failed to seek Court approval of the transaction. To the extent Trustee proceeded under FED.
R. BANKR. P. Rule 6004(d), such transaction still required notice to all creditors. Importantly, FED. R. BANKR. P. Rule 6004(d) only applies to sales under $2,5000. Here, the sale was for the amount of $2,500, which requires a motion and order. Therefore, Trustee having lacked authorization to engage in the transaction, and having failed to administer the estate in accordance with the Federal and Local Rules, the Court is inclined to disallow the requested compensation.
APPEARANCES REQUIRED.
Debtor(s):
Abraham Llamas Represented By Jaime A Cuevas Jr.
Trustee(s):
Howard B Grobstein (TR) Pro Se
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EH
(Tele. appr. Arturo Cisneros, trustee)
(Tele. appr. Thomas Downie, authorized representative of Debtor)
Docket 44
- NONE LISTED -
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
Trustee(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
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EH
(Tele. appr. Nancy Lee, rep. creditor, U.S. Bank National Association) (Tele. appr. Paul Reza, rep. Debtor, Irene Lopez)
(Tele. appr. Karl T. Anderson, chapter 7 trustee) (Tele. appr. Tinho Mang, rep. chapter 7 trustee) (Tele. appr. Stefan Riderer, Buyer/Qualified Bidder)
(Tele. appr. Jennifer Toyama, real estate agent for Karl Anderson)
(Tele. appr. Clarence Yoshikane, rep. real estate agent for Karl Anderson) (Tele. appr. Lucia Riderer, Buyer/Qualified Bidder)
(Tele. appr. Sonia Estrada, realtor for buyer, Luis Macias) (Tele. appr. Chris Vea, realtor/agent representing buyer) (Tele. appr. Sean Ouji, buyer of the real property
Docket 39
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On September 21, 2020, Irene Lopez ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 7637 Eastwood Ave., Rancho Cucamonga, CA 91730 (the "Property"). Schedule A identified the value of the Property as $500,000. Schedule C claimed an exemption in the Property in the amount of $28,432.15. Schedule D identified two creditors holding a security interest in the Property: (1) Rushmore Loan Management Services (in the amount of $285,145); and
Wells Fargo Bank NA (in the amount of $43,970). On December 11, 2020, Debtor amended her claimed exemption in the Property, increasing the claimed exemption to
$175,000. On January 4, 2021, Debtor received a discharge.
On March 4, 2021, the Court approved a compromise motion between Debtor and Trustee which provided that Debtor would subordinate her homestead exemption to costs of sale and Trustee’s compensation, and, to the extent of $50,000, to the remainder of claims. On March 18, 2021, the Court approved the employment of Clarence Yoshikane as real estate agent for the estate.
On April 13, 2021, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Stefan & Lucia Riderer (the "Purchasers") for $540,000. Proposed payments from the proceeds include: (1) $285,145 for the secured claim of Rushmore Loan Management Services; (2) $43,970 for the secured claim of Wells Fargo; (3)
$30,250 for a broker’s commission (the Court notes that this broker’s commission, which Trustee asserts is 4.5% of the purchase, is not 4.5% of the purchase price. The maximum broker’s commission is $24,300); and (4) $10,800 for costs of sale, leaving
$145,535 for the bankruptcy estate (while not technically the subject of the instant motion, the Court notes that the proposed Trustee’s compensation appears to include a commission based on money to be paid to Debtor, which is prohibited by 11 U.S.C. § 326(a)). Pursuant to the distribution outlined in the motion, all claims would be paid in full. On April 19, 2021, U.S. Bank Trust National Association (the actual holder of the first lien) filed a non-opposition to the sale motion.
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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 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 estate to begin marketing the Property in March 2021, and the real estate agent showed the Property nine time, and received sixteen calls from agents and two purchase offers.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) (2010) states:
(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-
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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).
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 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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As noted in footnote 2, the Court has reviewed the proposed broker’s commission and finds the proposed commission to be excessive. As noted in footnote 3, the Court has reviewed the estimated Trustee’s compensation, and the compensation appears to be incorrectly calculated.
The Court is inclined to GRANT the motion in its entirety subject to any overbids being received, and with a reduction in the proposed broker’s commission of $5,950. Trustee to update the Court with a revised proposed windfall based on the concerns raised in this tentative ruling.
APPEARANCES REQUIRED.
Debtor(s):
Irene Lopez Represented By
Paul V Reza
Movant(s):
Karl T Anderson (TR) Represented By Richard A Marshack Tinho Mang
Chad V Haes
Trustee(s):
Karl T Anderson (TR) Represented By Richard A Marshack Tinho Mang
Chad V Haes
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EH
(Tele. appr. Tinho Mang, rep. chapter 7 trustee)
Docket 58
On September 23, 2020, Maria Hernandez ("Debtor") filed a Chapter 7 voluntary petition.
On November 23, 2020, Trustee filed a notice of assets. The next day, Trustee filed a complaint against Oceana Gwen, LLC ("Oceana") and Emmanuel Andrade ("Andrade"). Andrade is Debtor’s son, and Andrade and Debtor together comprise the two members of Oceana. On December 15, 2020, Debtor filed a motion to convert the case to Chapter 13; the hearing was continued by stipulation twice, and is currently set for May 26, 2021. On December 18, 2020, the Court entered an order approving a stipulation to extend the deadlines to file a complaint to deny discharge and to file a motion to dismiss the bankruptcy case.
On April 21, 2021, Trustee filed a motion to approving a compromise with Debtor,
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Oceana, and Andrade. The motion relates to certain real property located at 1015-1017
W. Mission Blvd., Pomona, CA 91766 (the "Property"). According to Trustee, Debtor transferred the Property to Oceana less than two years before the petition date for no consideration.
Pursuant to the compromise motion, Debtor will pay Trustee $8,000, waive any exemption in those funds and in funds previously turned over, totaling $25,355.49, and withdraw the motion to convert the case to Chapter 13. Trustee asserts that approval of the compromise motion will allow all claims to be paid in full.
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.
The instant compromise meets the A&C Properties factors and is in the best interests of the estate. Trustee’s declaration in support of the motion states that the compromise
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will "provide funds in an amount sufficient to pay all creditor claims in full." Therefore, the compromise will provide the maximum benefit to the estate while minimizing the costs, delay, and uncertainty that would arise from the prosecution of the pending adversary proceeding. For that reason, the Court concludes that the proposal is in the best interests of the estate and satisfies all of the A&C Properties factors.
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):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
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Richard A Marshack Chad V Haes
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Adv#: 6:20-01083 Pringle v. Eskarous
Docket 17
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Manal Eskarous Represented By Michael A Corfield
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
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Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01089 Pringle v. Barsoom
7055-1; Memorandum of Points and Authorities, Declarations of John P. Pringle and David M. Goodrich in Support (with Proof of Service)
EH
Docket 23
On December 8, 2017, Mark Bastorous & Bernadette Shenouda (collectively, "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 Am Saber & Yousria Mikhail Guirguis (collectively, "Defendants"). Trustee’s complaint contained three causes of action: (1) actual fraudulent transfer; (2) constructive 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
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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
$16,500 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On January 12, 2021, Trustee filed a motion for default judgment against Defendants, 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.
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 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 Defendants, or that would indicate how Trustee determined that the address used was a valid service address for Defendants .
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 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). 11 U.S.C.
§ 544(b)(1) provides that a "trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor." And CAL. CIV. CODE § 3439.04(a)(1) provides:
A transfer made or obligation incurred by a debtor is voidable as to a
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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
Here, Debtors’ bankruptcy estate was consolidated with a variety of entities, include PIG, and, as such, the adequately alleged transfer from PIG to Defendants constitutes a transfer of Debtors’ property. The subject transfers, occurring during 2015, occurred within four years of the bankruptcy filing, and, pursuant to the claims register in Debtors’ bankruptcy case, a creditor existed at the time the subject transfers were made.
Regarding intent, the Ninth Circuit 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, 704 (9th Cir. 2008). Here, the Court finds that the uncontroverted allegations in the complaint, taken as true, are sufficient to establish the existence of a Ponzi scheme, and, therefore, that Debtors’ actual intent to defraud has been established.
While the Ninth Circuit’s "netting rule," restricts the recovery in the context of a Ponzi scheme, that reduction is part of a good faith affirmative defense that has not been raised by Defendants here. See, e.g., Donell v. Kowell, 533 F.3d 762, 771 (9th Cir. 2008) ("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.’ However, there is a ‘good faith’ defense that permits an innocent winning investor to retain funds up to the amount of the initial outlay.").
For the reasons stated in the motion for default judgment and the complaint, the Court finds that recovery and preservation of the avoided transfers, under 11 U.S.C. §§ 550 and 551, respectively, is appropriate.
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Conditioned upon Trustee providing a representation regarding attempts to verify service upon Defendants, the Court is inclined to GRANT the motion, entering judgment on the first and third claims for relief.
APPEARANCES REQUIRED.
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
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
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Adv#: 6:20-01094 Pringle v. Wextron Ltd
EH
Docket 21
On December 8, 2017, Mark Bastorous & Bernadette Shenouda (collectively, "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 Wextron Ltd. ("Defendant"). Trustee’s complaint contained three causes of action: (1) actual fraudulent transfer; (2) constructive 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
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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
$84,145.14 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On April 9, 2021, Trustee filed a motion for default judgment against Defendant, 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.
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 2220 Hillcrest St., Orlando, FL 3203. Trustee attaches as an exhibit a Westlaw Public Records search result for Defendant that lists its address as the address Trustee used for service. Based on the evidence submitted, the Court finds 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, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding 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). 11 U.S.C.
§ 544(b)(1) provides that a "trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor." And CAL. CIV. CODE § 3439.04(a)(1) provides:
(a) 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
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the obligation as follows:
(1) With actual intent to hinder, delay, or defraud any creditor of the
debtor
Here, Debtors’ bankruptcy estate was consolidated with a variety of entities, include PIG, and, as such, the adequately alleged transfer from PIG to Defendants constitutes a transfer of Debtors’ property. The subject transfers, occurring during 2015, occurred within four years of the bankruptcy filing, and, pursuant to the claims register in Debtors’ bankruptcy case, a creditor existed at the time the subject transfers were made.
Regarding intent, the Ninth Circuit 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)
or a state's equivalent to that section." 525 F.3d 700, 704 (9th Cir. 2008). Here, the Court finds that the uncontroverted allegations in the complaint, taken as true, are sufficient to establish the existence of a Ponzi scheme, and, therefore, that Debtors’ actual intent to defraud has been established.
While the Ninth Circuit’s "netting rule," restricts the recovery in the context of a Ponzi scheme, that reduction is part of a good faith affirmative defense that has not been raised by Defendants here. See, e.g., Donell v. Kowell, 533 F.3d 762, 771 (9th Cir. 2008) ("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.’ However, there is a ‘good faith’ defense that permits an innocent winning investor to retain funds up to the amount of the initial outlay.").
For the reasons stated in the motion for default judgment and the complaint, the Court finds that recovery and preservation of the avoided transfers, under 11 U.S.C. §§ 550 and 551, respectively, is appropriate.
The Court is inclined to GRANT the motion and enter judgment against Defendant on
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the first and third claims for relief.
APPEARANCES REQUIRED.
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
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
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Adv#: 6:18-01210 Kim v. Yoon et al
(Holding date)
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 3/4/21 9/15/20, 10/18/20 ,2/3/21, 3/3/21
EH
(Tele. appr. Jiyoung Kym, rep. Plaintiff, Vivian Kim)
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
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Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
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Adv#: 6:21-01031 Steven M. Speier, solely in his capacity as Chapte v. Briggs Law
M. Speier, solely in his capacity as Chapter 7 Trustee of the bankruptcy estate of Daisy Wheel Ribbon Co., Inc. against Briggs Law Corporation, a California Corporation. ($350.00 Fee Charge To Estate). Complaint For: 1. To Avoid And Recover Fraudulent Transfers Pursuant To 11 U.S.C. §§ 544(b), 548(a)(1)(A), and 550, and California Civil Code § 3439.04(A)(1); 2. To Avoid And Recover Fraudulent Transfers Pursuant To 11 U.S.C. §§ 544(b), 548(a)(1)(B) and 550, and California Civil Code §§ 3439.04(a)(2) and 3439.05; 3. Avoidance And Recovery Of Fraudulent Transfers Pursuant To 11 U.S.C. § 550(a); 4. To Recover And Preserve Transfers For The Benefit Of The Estate; 5. Disallowance Of Claims Pursuant To 11 U.S.C. § 502(b)(4); and 6. Disallowance Of Claims Pursuant To 11 U.S.C. §502(d) and (j) Nature of Suit: (13 (Recovery of money/property - 548 fraudulent transfer)),(14 (Recovery of money/property - other)) (Goe, Robert)
EH
(Tele. appr. Robert Goe, rep. Steven Speier, chapter 7 trustee)
(Tele. appr. Cory J. Briggs, rep. Defendant, Briggs Law Corporation)
Docket 1
- NONE LISTED -
Debtor(s):
Daisy Wheel Ribbon Co., Inc. Represented By Louis J Esbin
Defendant(s):
Briggs Law Corporation, a Represented By Cory J Briggs
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Plaintiff(s):
Steven M. Speier, solely in his Represented By Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
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Adv#: 6:20-01151 Chaffey Federal Credit Union v. Bomar, Jr.
EH
From: 11/4/20,12/2/20
(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
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, 4/30/20,12/17/20
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
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
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
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Chantal Van Ongevalle, rep. Debtors, Dana Pettus and Andrea Doster)
Docket 55
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
From: 4/29/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Chantal Van Ongevalle, rep. Debtors, Dana Pettus and Andrea Doster)
Docket 49
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
Also #2, 3 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Chantal Van Ongevalle, rep. Debtors, Dana Pettus and Andrea Doster)
Docket 63
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 21
Debtor(s):
ADRIANA VARGAS Represented By Jamil L White
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor, Jayzelle White)
Docket 0
Debtor(s):
Jayzelle Davon White Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Sharon D. McIntosh Represented By
James D. Hornbuckle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Bessie Johnson Desroches Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joanne Andrew, specially appearing for Debtor, Nicholas Wajda)
Docket 0
Debtor(s):
Todd Hampton Elliott Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
Debtor(s):
Laura Chavis Represented By
Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Suzette Douglas, rep. Debtor, Leo Bly)
(Tele. appr. Joseph Delmotte, rep. creditor, Wells Fargo Bank)
Docket 0
Debtor(s):
Leo F. Bly Represented By
Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Samuel Uribe Dominguez Jr. Represented By
Arete R Kostopoulos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
Debtor(s):
Thomas Lewis Weaver Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Robert Chen, rep. Debtor, Amparo De Leon)
Docket 0
Debtor(s):
Amparo De Leon Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 64
Debtor(s):
Larry R. Hoddick Represented By Summer M Shaw
Joint Debtor(s):
Joyce Kelly Hoddick Represented By Summer M Shaw
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 89
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 33
Debtor(s):
Waryeva D. Anderson Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 68
Debtor(s):
Joe A Pickens II Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 70
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 61
Debtor(s):
Michael D Guffa Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 70
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. Rebecca Tomilowitz, rep. Debtor, Angelita Kurmen)
Docket 49
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Halli Heston, rep. Debtor, Monica Aguirre)
Docket 46
Debtor(s):
Monica Aguirre Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
Debtor(s):
Robert Lee Thomas, Sr. Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 42
Debtor(s):
Margarita Barham Represented By Christopher Hewitt Lazaro E Fernandez
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
EH
Docket 440
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
1:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
EH
Docket 427
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Movant(s):
Charles Edward Schrader Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
1:00 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, 11/18/20,12/2/20,2/17/21, 4/7/21,4/21/21
EH
Docket 1
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES LLC
EH
(Tele. appr. Christina Khil, rep. creditor, Pennymac Loan Services LLC) (Tele. appr. Paul Lee, rep. Debtors, Ronald and Trisha Waters)
Docket 134
Based upon the order entered May 24, 2021, granting Debtors’ motion to sell the subject real property, and it appearing that such sale will result in Movant’s claim being satisfied in full, the Court is inclined to CONTINUE the hearing on the motion for the sale to be completed and Movant’s lien satisfied.
APPEARANCES REQUIRED.
Debtor(s):
Ronald A Waters Represented By Paul Y Lee
Joint Debtor(s):
Trisha Waters Represented By Paul Y Lee
11:00 AM
Movant(s):
PennyMac Loan Services, LLC Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MEB LOAN TRUST IV
EH
(Tele. appr. Josephine Salmon, rep. creditor, MEB Lolan Trust IV)
Docket 53
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 under ¶ 13 as moot
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
William Edward Walker Represented By Jenny L Doling
11:00 AM
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling
Movant(s):
MEB Loan Trust IV Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
Docket 34
Movant to apprise Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Jeremiah M Moore Represented By Tom A Moore
Movant(s):
Freedom Mortgage Corporation Represented By Ashley Popowitz Dane W Exnowski
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 4/20/21 EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
(Tele. appr. Jonny Asuncion (specially appearing for Suzette Douglas), rep. Debtor, Jerold Hoxie)
Docket 34
- NONE LISTED -
Debtor(s):
Jerold Ray Hoxie Represented By Suzette Douglas
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski Ciro Mestres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AJAX MORTGAGE LOAN TRUST 2019-E, MORTGAGE BACK SECURITIES, SERIES 2910-E BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
From: 2/16/21,4/27/21 EH
(Tele. appr. Donna Travis, rep. Debtor, Portia Barmes)
(Tele. appr. Reilly Wilkinson, rep. AJAX Mortgage Loan Trust)
Docket 78
- NONE LISTED -
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Movant(s):
Ajax Mortgage Loan Trust 2019-E, Represented By
Reilly D Wilkinson Joshua L Scheer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21
MOVANT: NEWREZ LLC
EH
Docket 59
Given the evidence submitted by Debtors that Movant granted Debtors a COVID-19 related forbearance for the payments in question, the Court is inclined to DENY the motion for lack of cause shown.
APPEARANCES REQUIRED.
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
11:00 AM
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Eric P Enciso
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: LAKEVIEW LOAN SERVICING, LLC
From: 12/15/20,1/19/21, 3/2/21, 4/6/21,4/20/21 EH
(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: U.S. BANK NATIONAL ASSOCIATION
EH
Docket 42
- NONE LISTED -
Debtor(s):
Joseph J Vargas Represented By Julie J Villalobos
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: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
(Tele. appr. Josephine Salmon, rep. creditor, U.S. Bank Trust National Association)
Docket 11
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 requests under ¶¶ 2 and 3
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. 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 Alberto Landino Represented By
W. Derek May
11:00 AM
Joint Debtor(s):
Tina Tehranchi Represented By
W. Derek May
Movant(s):
U.S. Bank Trust National Represented By Joseph C Delmotte
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: DAVID Y. CHEN, HSUCH HUNG CHANG
EH
(Tele. appr. Marjorie Johnson, rep. creditor, David Y. Chen, Hsuch Hung Chang)
(Tele. appr. Hanzhang Xu, rep. Debtor, Qun Wang)
Docket 37
The Court notes that Movant asserts that it "acquired title to the Property by foreclosure sale before the bankruptcy petition was filed and recorded the deed within the period provided by state law for perfection." The Court further notes that CAL. CIV. Code § 2924(h)(c) provides that the date of perfection relates back to the date of the sale if the deed of sale is recorded within fifteen days of the sale. Here, however, Movant waited forty-eight days to record the deed of sale, recording the deed after the instant petition was filed. As such, it would appear that Movant recorded its deed in violation of the automatic stay, and, therefore, the foreclosure sale appears to not be valid. See generally In re Svacina, 618 B.R 852 (Bankr. C.D. Cal. 2020) (discussing § 2924(h)(c)); see also Burton v. Infinity Capital Mgmt., 862 F.3d 740 (9th Cir. 2017) (actions taken in violation of the automatic stay are void.).
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Qun Wang Represented By
Jianmin Zhou
Movant(s):
David/ Hsuch Chen/ Chang Represented By Barry L O'Connor
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
Docket 7
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
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Mary Soto Represented By
Jaime A Cuevas Jr.
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
11:00 AM
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
(Tele. appr. Sheryl Ith, rep. Ford Motor Credit Company LLC)
Docket 10
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 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):
Jonatan Zepeda-Quirarte Represented By Brian J Soo-Hoo
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: CAB WEST, LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Cab West, LLC)
Docket 8
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 alternative request under ¶ 11 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 Crawford Represented By Sundee M Teeple
Joint Debtor(s):
Delores Crawford Represented By
11:00 AM
Movant(s):
Sundee M Teeple
Cab West, LLC Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 9
11 U.S.C. § 362 provides in relevant 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
11 U.S.C. § 362(h)(1)(A) (emphasis added).
Here, Debtor did not list the subject collateral on the statement of intention. 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 thirty-day deadline for filing or amending the statement of intention passed on May 12, 2021, 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):
Luis Enriquez Represented By Stephen D Brittain
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
3N1AB7AP3EY325857 with proof of service. MOVANT: PARTNERS FEDERAL CREDIT UNION
EH
(Tele. appr. Yuri Voronin, rep. creditor, Partners Federal Credit Union)
Docket 10
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 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):
Luis Antonio Lopez Cisneros Represented By Daniel King
Movant(s):
Partners Federal Credit Union Represented By
11:00 AM
Trustee(s):
Yuri Voronin
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 1/5/21,2/16/21 EH
Docket 36
- NONE LISTED -
Debtor(s):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James G. Beirne
Movant(s):
Specialized Loan Servicing LLC Represented By
John Rafferty Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
(Tele. appr. Nicholas Gebelt, rep. Debtor, Markus Boyd)
Docket 244
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
Movant(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
2:00 PM
Docket 68
- 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
Also #19
MOVANT: BARSTOW DALUVOY FIRST MORTGAGE INVESTORS, LP
EH
(Tele. appr. William Beall, rep. Barstow Daluvoy Morotgage Investors, LP) (Tele. appr. Ali Matin rep. Office of the United States Trustee)
(Tele. appr. Dawn Coulson, rep. interested party)
(Tele. appr. Donald Reid, rep. Debtor, Raman Enterprises LLC)
Docket 66
Raman Enterprises, LLC ("Debtor") filed a Chapter 11 voluntary petition on December 8, 2020. Debtor’s only material assets are two parcels of real property, one in Barstow (zoned commercial) (the "Barstow Property") and one in Riverside (zoned residential) (the "Riverside Property"). Schedule A valued these real estate parcels at
$1.95 million each. On Schedule D. Debtor listed three liens against each parcel. The Barstow Property was identified as encumbered by a voluntary lien in the amount of
$761,099 and a tax lien in the amount of $17,631.66. The Riverside Property was encumbered by a voluntary lien in the amount of $525,000 and a tax lien in the
2:00 PM
amount of $96,049.76. Both properties were encumbered by a cross-collateralized lien of an unknown amount, although Proof of Claim Number 4 identifies the amount of the cross-collateralized lien as $565,098.40.
On January 11, 2021, the Court entered a scheduling order that provided for a deadline to file a Chapter 11 plan and disclosure statement of July 15, 2021. Debtor subsequently employed counsel and a real estate broker to market the two properties.
On April 20, 2021, Barstow Daluvoy First Mortgage Investors, LP ("Movant"), the holder of the voluntary lien against the Barstow Property, filed a motion for relief from the automatic stay. Movant seeks relief under 11 U.S.C. § 362(d)(1)-(3). On May 11, 2021, Debtor filed an opposition. On May 18, 2021, Movant filed a reply.
Regarding 11 U.S.C. § 362(d)(1), Movant argues that the case was filed in bad faith and that the fair market value of the properties is declining, eliminating any adequate protection for Movant. Regarding 11 U.S.C. § 362(d)(2), Movant asserts that there is no equity in the Barstow Property and that Debtor does not have reasonable prospects for reorganizing. Regarding 11 U.S.C. § 362(d)(3), Movant asserts that the Court should treat the Barstow and Riverside properties as a "single project," and if the Court finds that this is a single asset real estate case, then § 362(d)(3) is clearly applicable. The Court notes that Movant has not maintained its argument under
§ 362(d)(3) in the reply.
11 U.S.C. § 362(d)(1)
There are two proffered bases for relief under § 362(d)(1): (1) lack of adequate protection; and (2) bad faith. Regarding the former argument, it would appear that uncontested that Movant presently has an adequate equity cushion; indeed, the figures in the Motion (pgs. 7-8) indicate an equity cushion in excess of 50%. Pointing to the continuing decline in the valuations declared by Debtor, and the intention to continue decrease the listing price, Movant contends that its equity cushion is eroding.
The Court notes, however, that Debtor’s intent to facilitate a quick sale by steadily decreasing the listing price does not necessarily indicate any decline in value. The steady decline in the properties’ valuations does place the credibility of the valuations in question, but § 362(g)(1) places the burden on the issue of equity on the Movant.
2:00 PM
Here, lacking evidence that convincingly establishes that the Barstow Property is truly declining in value, and noting that Movant’s argument that it is not adequately protected appears premature at the present time, the Court cannot find that Movant lacks adequate protection.
The Court also is not convinced by Movant’s argument that this case was filed in bad faith. The fact that there are merely five creditors and that there were transfers of the subject property in 2018 and 2019 is not unusual for the type of Debtor that exists here – a business entity that was created for the sole purpose of owning parcels of real property. Instead, the record before the Court suggests that when Debtor filed this case it was reasonably plausible that Debtor would be able to sell the properties at a price that would enable it to pay all creditors in full.
11 U.S.C. § 362(d)(2) and (3)
First, the Court notes that Debtor does not appear to contemplate a reorganization. Instead, as indicated in the previous status report in this case, "Debtor believes its bankruptcy estate is solvent and can be expediently liquidated in this chapter 11 case." [Dkt. No. 65, pg. 2].
Turning to whether there is equity, the dispute between Movant and Debtor centers around the treatment of the cross-collateralized lien. Debtor contends that in the aggregate there is equity in the Barstow and Riverside properties, although it would appear, based on current listing prices, and because of the cross-collateralized lien, the amount of the liens secured against the Barstow Property exceeds its fair market value.
Debtor, however, asks this Court to attribute half (or all) of the value of the cross- collateralized lien to the Riverside Property, thereby reducing the amount attributable to the Barstow Property and creating equity in the latter. The Court notes that Debtor has not provided any caselaw supporting its proposed modification of the simply equity calculation. Importantly, Debtor’s argument that the Court should consider the aggregate value of the two properties, and the aggregate value of the liens attaching to those properties, essentially asks this Court to consider the properties as a single project.
2:00 PM
But in its opposition to Movant’s request under § 362(d)(3), Debtor points out that the two subject parcels are located in different counties and are zoned different, and therefore are not a single project. Outside of the context of a liquidation in bankruptcy, these two parcels would not appear to be part of a common project. In these Chapter 11 liquidation proceedings, however, the "project" is simple – sell the two properties and satisfy the existing liens, including the cross-collateralized lien.
In short, it appears plainly inconsistent for Debtor to assert that these two parcels of property are not a common project and should be treated separately, while also asking this Court to acknowledge that it intends to sell the two properties, generate a common pot, and pay all creditors. Regardless of their "use" in a different context, in the context of the proceedings at issue here, the properties would appear to be part of a "single project," and thus 11 U.S.C. § 362(d)(3) may be satisfied. And, if treated separately, as the Court believes is the correct approach, then it would appear that 11
U.S.C. § 362(d)(2) has been satisfied.
APPEARANCES REQUIRED.
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Movant(s):
Barstow Daluvoy Project Lenders Represented By
William C Beall
2:00 PM
Also #18
From: 1/5/21, 4/6/21,4/20/21 EH
(Tele. appr. William Beall, rep. Barstow Daluvoy First Mortgage Investors, LP)
(Tele. appr. Ali Matin rep. Office of the United States Trustee) (Tele. appr. Donald Reid, rep. Debtor, Raman Enterprises LLC) (Tele. appr. Dawn Coulson, rep. interested party)
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
2:00 PM
Also #21 EH
(Tele. appr. Christopher De Mint, principle of Debtor) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
Docket 102
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
Also #20
From: 3/16/21, 3/30/21 EH
(Tele. appr. Christopher De Mint, principle of Debtor) (Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.)
(Tele. appr. Cameron Ridley, rep. Office of the United States Trustee)
Docket 15
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
Requiring Status Report EH
(Tele. appr. Summer Shaw, rep. Debtor, Steven Johns)
Docket 5
- NONE LISTED -
Debtor(s):
Steven D Johns Represented By Summer M Shaw
11:00 AM
(Tele. appr. Misty Perry Isaacson, rep. chapter 7 trustee)
Docket 59
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee, Counsel, Accountant, and Special Litigation Counsel for the Trustee have been set for hearing on the notice required by LBR 2016-1. With respect to the fee application of Special Litigation Counsel Gary
M. Bullock ("Special Counsel"), upon review of the billing records, the Court finds that the fees in general appear excessive. Moreover, the fee application does not include a narrative declaration explaining the services rendered in compliance with LBR 2016-1 (c)(1)(2). As such, review of fees lacks the context necessary for the Court to determine whether the fees are reasonable and necessary pursuant to 11
U.S.C. § 330(a)(1). Therefore, pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to CONTINUE the hearing for Special Counsel to supplement his fee application. Otherwise, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 10,057.80 Trustee Expenses: $ 23.70
Counsel Fees: $ 12,220 Counsel Expenses: $ 1,054.77
Accountant Fees: $ 2,967.50 Accountant Expenses: $ 454.99
11:00 AM
Debtor(s):
Nathan Loren Ingram Represented By
Bryant C MacDonald
Joint Debtor(s):
Bryta Lee Ingram Represented By
Bryant C MacDonald
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Gary M Bullock
11:00 AM
EH
(Tele. appr. Daniel King, rep. Debtors, William and Tressa Barnett)
Docket 23
- NONE LISTED -
Debtor(s):
William James Barnett Represented By Daniel King
Joint Debtor(s):
Tressa Luceile Barnett Represented By Daniel King
Movant(s):
William James Barnett Represented By Daniel King
Tressa Luceile Barnett Represented By Daniel King Daniel King
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
Docket 59
No opposition has been filed. Service was proper.
The applications for compensation of the Trustee, Counsel, and Accountant for the Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 6,350 Trustee Expenses: $ 23.54
Attorney Fees: $ 42,567.93 Attorney Expenses: $ 544.93
Accountant Fees: $ 2,575 Accountant Expenses: $ 441.44
Court Charges: $ 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):
Richard M. Thomas Represented By
11:00 AM
Keith Q Nguyen
Joint Debtor(s):
Raquel Young Represented By Keith Q Nguyen
Trustee(s):
Karl T Anderson (TR) Represented By Larry D Simons Frank X Ruggier
11:00 AM
Docket 48
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: $ 2,250 Trustee Expenses: $ 0
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):
Filiberto B Robles Represented By Daniel King
Joint Debtor(s):
Maria Jesus Robles Represented By Daniel King
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
From: 4/21/21 EH
Docket 101
- NONE LISTED -
Debtor(s):
Mumtaz Sajjad Represented By Michael R Perry
Movant(s):
Larry D Simons (TR) Represented By Anthony A Friedman
Trustee(s):
Larry D Simons (TR) Represented By Anthony A Friedman
11:00 AM
EH
Docket 27
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
Maria Elvia Hernandez Represented By Christopher J Langley Christopher J Langley Christopher J Langley Christopher J Langley
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
11:00 AM
Docket 37
5/26/2021
Juana Floredeliza Phillips ("Debtor") filed a Chapter 13 voluntary petition on December 29, 2020. Debtor’s case was converted to a Chapter 7 on February 8, 2021. On April 6, 2021. Debtor filed the instant motion, now seeking to convert her case back to a Chapter 13.
On May 3, 2021, Debtor filed a Declaration re: non opposition to the motion. The same day, the Court entered an order as follows:
The Court notes that, contrary to the assertion in the motion, the instant case was previously converted on February 8, 2021. The caselaw is split regarding whether a debtor may reconvert a case under 11 U.S.C. § 706(a), and, if so, what showing is required. See generally In re Banks, 252 B.R. 399 (Bankr. E.D. Mich. 2000) (providing summary of caselaw). Under any interpretation of § 706(a), Debtor has not made the required showing, given that the instant motion is skeletal and contains no admissible evidence. Debtor may file a supplemental brief addressing the permissibility of reconversion under § 706(a), and the appropriate legal standard to apply, by no later than May 11, 2021.
[Dkt. 44]. Debtor has not filed a supplemental brief.
11:00 AM
11 U.S.C. § 706(a) states: "The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title." Here, Debtor’s case was previously converted under § 1307.
"Courts are divided as to whether the debtor can re-convert a case that has been previously converted." GINSBERG & MARTIN ON BANKRUPTCY § 12.13[A] (5th ed. 2017-2); see also In re Masterson, 141 B.R. 84, 87 (Bankr. E.D. Pa. 1992) ("The courts appear to be evenly divided on the issue of whether a ‘second conversion’ of a case previously converted to Chapter 7 is ever permissible.") (collecting cases). The
courts that have determined that § 706(a) bars subsequent reconversion have primarily relied upon the plain language of the statute, but have also considered the legislative history. See In re Banks, 252 B.R. 399, 400 (Bankr. E.D. Mich. 2000). One court has stated the following:
Unfortunately, for the debtor, the language of Section 706 clearly bars a debtor from converting a case from Chapter 7 to Chapter 13 more than once. Subsection (a) of that section states in relevant part that a "debtor may convert a case under this chapter to a case under Chapter 11 or 13 of this title at any time, if the case has not been converted under Section 1112 or 1307 of this title. The language of this statute is not discretionary. By its plain meaning it bars the debtor from this second attempt at conversion. Moreover, there is no case law supporting a discretionary right. At least one other bankruptcy court has arrived at this conclusion, In re Bumpass, 28 B.R. 597 (Bankr. S.D.N.Y. 1983), and this Court shares that view.
In re Nimai Kumar Ghosh, 38 B.R. 600, 603 (Bankr. E.D.N.Y. 1984) (emphasis added) (footnote omitted).
As the court implicitly concluded in Nimai Kumar Ghosh, the phrase "if the case has
11:00 AM
not been converted" appears to modify the entirety of the first clause, not simple the language "at any time." The phrase "at any time" is not set off from the remainder of the clause in any fashion. Therefore, §706(a) is only applicable if the case has not been converted previously. The remaining question is, if § 706(a) is inapplicable, can the Debtor resort to any other mechanism in order to convert her case?
Courts that have permitted a reconversion appear to fall into two categories. First, some courts appear to believe that, when § 706(a) is inapplicable, the default position is that the Court has discretion to allow conversion based on policy grounds. See, e.g., In re Masterson, 141 B.R. at 88. Other courts have turned to § 706(c). See, e.g., Matter of Johnson, 116 B.R. 224, 225 (Bankr. Idaho 1990); In re Sensibaugh, 9 B.R. 45, 46 (Bankr. E.D. Va. 1981). Section 706(c) states: "[t]he court may not convert a case under this chapter to a case under chapter 12 or 13 of this title unless the debtor requests or consents to such conversion." While the plain language of § 706(c) indicates that it operates as a restraint on the court’s authority, not as a source of authority, courts that have utilized this provision appear to conclude that if the debtor consents to or requests conversion, the court has discretion to permit such conversion.
A third possibility is that a debtor could seek voluntary dismissal or conversion under
§ 707, consent to conversion, and allow the Court to determine whether dismissal or conversion was more appropriate in the circumstances. This approach would have the disadvantage of possibly resulting in dismissal of the case, but it would seem to solve the statutory interpretation issues encountered by the alternative approaches.
Nevertheless, the Court need not determine whether reconversion is permitted under § 706(a) because, if the Court were to conclude that reconversion is discretionary, Debtor has not demonstrated that the exercise of such discretion would be appropriate, nor has Debtor filed any supplemental brief or evidence in response to the Court’s May 3rd order. Debtor has already had a Chapter 13 case dismissed in the previous year. More importantly, at the time Debtor converted to Chapter 7, Trustee had an outstanding objection to the confirmation of her Chapter 13 plan for inter alia, failure to appear at the 341(a) meeting and to make plan payments. On that record, Debtor appears to be unable to successfully complete a Chapter 13 case.
11:00 AM
Given Debtor’s history in bankruptcy, the absence of any legal argument in Debtor’s motion and the absence of any evidence suggesting a change in circumstances that would allow Debtor to be successful in a Chapter 13 proceeding despite the Court’s order, reconversion of the case, even if the Court were to conclude that such reconversion was legally permissible, is inappropriate.
The Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Juana Flordeliza Phillips Represented By Stephen L Burton
Movant(s):
Juana Flordeliza Phillips Represented By Stephen L Burton
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Adv#: 6:13-01171 Schrader v. Sangha
From: 4/7/21,5/6/21 EH
Docket 440
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
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: 3/31/21, 4/7/21,4/7/21,5/19/21 EH
(Tele. appr. Charles Schrader, Plaintiff)
Docket 427
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
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
Also #8, 9
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, 11/18/20,12/2/20,2/17/21, 4/7/21,4/21/21
EH
(Tele. appr. Charles Schrader, Plaintiff)
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01171 Daff (TR) v. Karadas
Complaint by Charles W Daff (TR) against Sean Karadas. ($350.00 Fee Charge To Estate). To Revoke and Deny Discharge of Debtor (Attachments: # 1 Summons # 2 Adversary Cover Sheet) Nature of Suit: (41 (Objection / revocation of discharge - 727(c),(d),(e))) (Daff (TR), Charles) filed by Plaintiff Charles W Daff (TR), Trustee Charles W Daff (TR)). (Attachments: # 1 Appendix Summons) (Daff (TR), Charles)
From: 4/28/21 EH
(Tele. appr. Charles Daff, chapter 7 trustee)
Docket 43
- 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
2:00 PM
Robert P Goe Thomas J Eastmond
2:00 PM
Adv#: 6:20-01057 Pringle v. Makar
(Tele. appr. Craig Robson, rep. Defendant, Ayad Makar) (Tele. appr. David Goodrich, rep. Plaintiff, John P. Pringle)
Docket 37
5/26/2021
On December 8, 2017, Mark Bastorous and Bernadette Shenouda filed a Chapter 7 voluntary petition.
On May 11, 2020, Trustee filed an adversary complaint against Ayad Makar ("Defendant") to avoid and recover fraudulent transfers. On February 22, 2021, the Court entered an order granting Defendant’s motion for summary judgment on all causes of action.
On April 26, 2021, Defendant filed the instant motion seeking leave to file a motion for attorney’s fees based on FED. R. CIV. P. Rule 37 after the deadline based on Rule 60(b) excusable neglect. Trustee filed an opposition on May 12, 2021.
2:00 PM
FED. R. BANKR. P. Rule 9024 (b)(2)(A) states that FED. R. CIV. P. Rule 54(d)(2)(A)-(C)
and (E) apply in adversary proceedings. Rule 54(d)(2)(B) prescribes a fourteen day time period to file a motion to seek attorney fees, however, subsection (d)(2)(E) states: "Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927."
Defendant’s underlying motion seeking an award of attorney fees proceeds pursuant to FED. R. CIV. P. Rule 37(c)(2), which is a claim for fees and expenses as a form of discovery sanctions. "Rule 54 is not applicable to Rule 37 sanctions." MTGLQ Invs., LP v. Wellington, No. 1:17-CV-00487-KG-LF, 2021 WL 371574, at *2 (D.N.M. Feb.
3, 2021). Therefore, the deadline set by FED. R. BANKR. P. Rule 9024(b)(2)(A) is inapplicable to the instant motion. However, LBR 7054-1(g)(1) applies and sets forth a 14-day deadline after the entry of judgment for filing a motion for attorneys’ fees.
As to the FED. R. CIV. P. Rule 60(b) analysis, the Court agrees with Trustee that there is insufficient evidence as to the secretary’s purported excusable neglect. As such, the Court does not address the remaining Pioneer factors.
As to the underlying merits, as reflected in Trustee’s objections to Defendant’s requests for admissions, particularly as the requests call for legal conclusions, Rule 37(c)(2)(D) would be satisfied because the Trustee’s objections provide "good reason" for failure to admit.
The Court is inclined to DENY the motion. APPEARANCES REQUIRED.
2:00 PM
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
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:21-01035 Meislik v. Hutton Foundation, Inc
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):
Hutton Foundation, Inc Pro Se
Plaintiff(s):
Adam Meislik Represented By
2:00 PM
Richard A Marshack David Wood
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
Also #15 EH
Docket 16
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Pro Se
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
Carmela Pagay
Trustee(s):
Lynda T. Bui (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
Also #14
From: 4/7/21,4/21/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Pro Se
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
2:00 PM
Trustee(s):
Carmela Pagay
Lynda T. Bui (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:20-01192 Price v. Salem et al
(Tele. appr. David Weil, rep. David Price, Plaintiff)
Docket 30
5/26/2021
On September 3, 2020, Amjad Yousef and Lina Amjad Salem ("Debtors") filed a Chapter 7 voluntary petition. Debtors were discharged on December 14, 2020.
On December 4, 2020, David Price ("Plaintiff") commenced Adversary No. 6:20-
ap-01192-MH by filing a complaint for non-dischargeability against Debtors pursuant to 11 U.S.C. §§ 523(a)(2) and (a)(6) ("Complaint").
The Complaint generally alleges that when Debtors sold a yacht to Plaintiff, they concealed that it had previously sunk and further misrepresented its physical condition. The Complaint is based on a judgment issued by the San Diego Superior Court ("Judgment") in the case Price v. Gullan, et. al. entered in Plaintiff’s favor, which found Debtors liable for Actual Fraud and Deceit by concealment and ordering them to pay Plaintiff $211,146.30 ($108,300 in damages and $102,846.30 in attorney fees). The Complaint lists the findings of fact and conclusion of law issued by the state court ("Statement of Decision").
2:00 PM
On April 20, 2021, Plaintiff filed a request for entry of default against Debtors. On April 21, 2021, the Clerk entered Debtors’ default.
On May 4, 2021, Plaintiff filed the instant motion for default judgment, amended to correct hearing date.
Entry of Default
FED. R. CIV. P. Rule 55 states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). Local Rule 7055-1 provides further requirements relating to a motion for entry of default judgment, and those requirements have been substantially satisfied here.
Motion for Default Judgment
Proper Service of Summons and Complaint
FED. R. BANKR. P. Rule 7004(b)(1) states, in part:
ervice may be made within the United States by first class mail postage prepaid as follows:
Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
2:00 PM
Here, service appears proper as Debtors were served at 2124 Alpinemist St., Corona, CA 92879, the address listed in the petition as their current mailing address.
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.").
The Complaint includes two causes of action. The first cause of action proceeds pursuant to 11 U.S.C. § 523(a)(2), and although not cited specifically in the Complaint, seeks nondischargeability pursuant to Subsection A, which states:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt –
for money, property, services, or an extension, renewal, or refinancing of creditor, to the extent obtained by –
false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
The Complaint proceeds pursuant to the Judgement based on actual fraud and deceit by concealment. The court in In re Melnik provides a relevant discussion on how the bankruptcy code incorporates these types of fraud:
For purposes of § 523(a)(2)(A), the term "false pretenses" means "‘conscious, deceptive, or misleading conduct calculated to obtain or deprive another of property.’" It includes "the practice of any scam, scheme, subterfuge, artifice, deceit or chicane in the accomplishment of an unlawful objective" by the defendant. False pretenses, therefore, may be based on an implied misrepresentation or silence in the
2:00 PM
face of a duty to disclose material facts on which a transaction depends.
The elements required to establish a debt as nondischargeable under false pretenses are: (1) an implied misrepresentation or conduct by the debtor; (2) promoted knowingly and willingly; (3) to create a contrived or misleading understanding of the transaction on the part of the creditor; (4) which wrongfully induced the creditor to advance money, property, or credit to the debtor.
. . .
Finally, a debt may be excepted from discharge under § 523(a)(2)(A) on the basis of actual fraud, which now may include types of fraud beyond frauds based on a misrepresentation. The term "actual fraud" encompasses "‘any deceit, artifice, trick, or design involving direct or indirect operation of the mind, used to circumvent or cheat another.’).
592 B.R. 9, 22 (Bankr. N.D.N.Y. 2018), aff'd sub nom. Reddy v. Melnik, No. 3:18-
CV-1197 (GTS), 2019 WL 2766592 (N.D.N.Y. July 2, 2019) (internal citations omitted).
Here, the Complaint includes the following findings of fact from the Statement of Decision that satisfy the elements of §523(a)(2)(A): that Debtors knew and actively concealed that the yacht had sunk, failed to disclose this to Plaintiff, and intended to deceive Plaintiff, inducing him to purchase the yacht and therefore suffer damages. On these facts, the state court concluded that Debtors were liable for actual fraud.
Accepting these allegations as true, the Court is inclined to find that Debtors obtained the debt through false pretenses and actual fraud and is liable to Plaintiff in the amount of the state court judgment awarded including the attorney fees, as the state court found pursuant to the Yacht purchase agreement. See Cohen v. De La Cruz, 118 S.Ct. 1212 (1998) (§523(a)(2)(A) encompasses all liability arising out of the fraud, including attorney’s fees and costs, if a state statute provides); see also In re Alejandro Gamboa, No. 11-16261-JDL, 2020 WL 5587431, at *4 (Bankr. W.D. Okla. Sept. 17, 2020) ("Following Cohen, courts have allowed attorney fees in § 523 dischargeability actions if a contract or applicable state statute provides for the same.").
The Court also notes that the doctrine of collateral estoppel appears to apply, as these facts were litigated in a bench trial where one Debtor was present. See In re Ryan,
2:00 PM
408 B.R. 143, 164 (Bankr. N.D. Ill. 2009) ("where a court of competent jurisdiction has previously ruled against a debtor upon specific issues of fact that independently comprise elements of a creditor's nondischargeability claim, the debtor may not seek to relitigate those underlying facts in bankruptcy court, provided that the issues involved had been actually litigated.") (quoting In re Carlson), 224 B.R. 659, 663 (Bankr.N.D.Ill.1998), aff'd, No. 99 C 6020, 2000 WL 226706 (N.D.Ill. Feb. 22, 2000),
aff'd, No. 00–1720, 2001 WL 1313652 (7th Cir. Oct. 23, 2001).
As to the second cause of action under § 523(a)(6), a creditor must prove that the injury was both willful and malicious. See In re Barboza, 545 F.3d 702, 706 (9th Cir. 2008). "A "willful" injury is a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Id. A "malicious" injury involves (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse." Id. The Complaint only contains one allegation to the effect of the state court’s finding of fact that Debtors willfully deceived Plaintiff with intent to induce him into purchasing the yacht, thereby causing Plaintiff to suffer damages. Although the state court used the word "willful," there is no clarity as to whether the willful deception was intended to cause the damages or if rather the intentional act of deception merely led to Plaintiff’s injury. If the Court was to surmise, the phrase, "thereby causing Plaintiff to suffer damages," tends to indicate an act that resulted in injury. Additionally, there are no allegations sufficiently detailed to show maliciousness, nor does the Statement of Decision provide a finding of maliciousness for the Court to consider the applicability of collateral estoppel. As such, accepting all allegations as true, the Court cannot determine if there was a willful and malicious injury within the meaning of § 523(a)(6).
In accordance with the foregoing, the Court is inclined to GRANT the motion in part entering judgment on the first claim pursuant to § 523(a)(2)(A) and DENY the motion in part as to the second claim pursuant to § 523(a)(6).
APPEARANCES REQUIRED.
2:00 PM
Debtor(s):
Amjad Yousef Salem Represented By Brian J Soo-Hoo
Defendant(s):
Amjad Yousef Salem Pro Se
Lina Amjad Salem Pro Se
Joint Debtor(s):
Lina Amjad Salem Represented By Brian J Soo-Hoo
Plaintiff(s):
David Price Represented By
David Weil
Trustee(s):
Steven M Speier (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, 4/30/20,12/17/20, 5/13/21
EH
(Tele. appr. Joey De Leon, 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
11:00 AM
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. James Lewin, rep. Real Time Solutions, Inc.)
(Tele. appr. Sheri Kanesaka, rep. Ticor Title Company of California)
Docket 243
- NONE LISTED -
Debtor(s):
Luevina Henry Pro Se
Movant(s):
Ticor Title Company of California Represented By
Sheri Kanesaka
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, Tracy Crooks)
Docket 137
- NONE LISTED -
Debtor(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Movant(s):
Tracy Lynne Crooks Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Norma Duenas, rep. Debtors, Gabriel and Jeneke Blanco)
Docket 84
- NONE LISTED -
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Karel Rocha, rep, creditor, LBS Financial Credit Union)
Docket 69
- NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Jeffrey Hagen, rep. Debtor, Gregory Richman)
Docket 42
- NONE LISTED -
Debtor(s):
Gregory Scott Richman Represented By Jeffrey J Hagen
Movant(s):
Gregory Scott Richman Represented By Jeffrey J Hagen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Ann Dee Smith, Joint Debtor)
(Tele. appr. Kevin Mahan, rep. Debtors)
Docket 29
On February 16, 2021, Adam & Ann Smith (collectively, "Debtors") filed a Chapter 13 voluntary petition. On March 10, 2021, the IRS filed a proof of claim for a priority claim in the amount of $30,000. On April 8, 2021, Debtors filed an objection to Claim
14. On April 15, 2021, the IRS amended their proof of claim, reducing the amount claimed to $0.
Pursuant to 11 U.S.C. § 502(a), a proof of claim is deemed allowed unless a party in interest objects. Absent an objection, a proof of claim constitutes prima facie evidence of the validity and amount of the claim under Federal Rule of Bankruptcy
11:00 AM
Procedure ("FRBP") 3001(f). See Lundell v. Anchor Constr. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000). When a party files an objection to a proof of claim, that filing "creates a dispute which is a contested matter" within the meaning of FRBP 9014 and the Court must resolve the matter after notice and opportunity for hearing upon a motion for relief. Id.
When a creditor has filed a proof of claim that complies with the rules (thereby giving rise to the presumption of validity), the burden shifts to the objecting party who must "present evidence to overcome the prima facie case." In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). To defeat the claim, the objecting party must provide sufficient evidence and "show facts tending to defeat the claim by probative force equal to that of the allegations of the proofs of claim themselves." Lundell, 223 F.3d at 1039 (quoting In re Holm, 931 F.2d 620, 623 (9th Cir. 1991)). "The objector must produce evidence, which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency." Lundell, 223 F.3d at 1040 (quoting In re Allegheny Int’l, Inc., 954 F.2d 167, 173-74 (3d Cir. 1992)). If the objecting party produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts back to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re Consol. Pioneer Mort, 178 B.R. 222, 226 (9th Cir. BAP 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (quoting Allegheny Int’l, 954 F.2d at 173-74). The ultimate burden of persuasion remains at all times on the claimant. See Lundell, 223 F.3d at 1039; see also Holm, 931 F.2d at 623.
The Court notes that the claim objection of Debtors was not served properly on the IRS because the IRS was not served at the notice address identified in the proof of claim. For that reason, the Court is inclined to OVERRULE the claim objection. The Court also notes, however, that the amendment of the IRS’s claim to an amount of $0 appears to moot the issue.
11:00 AM
The Court is inclined to OVERRULE the objection.
APPEARANCES REQUIRED.
Debtor(s):
Adam Lee Smith Represented By Kevin M Mahan
Joint Debtor(s):
Ann Dee Smith Represented By Kevin M Mahan
Movant(s):
Adam Lee Smith Represented By Kevin M Mahan
Ann Dee Smith Represented By Kevin M Mahan Kevin M Mahan Kevin M Mahan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 1
- NONE LISTED -
Debtor(s):
Kenneth Lewis Represented By
M. Wayne Tucker
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Jose Escoto Represented By
Rabin J Pournazarian
Joint Debtor(s):
Veronica Pineda Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Louis M DeRosa Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Keith Nguyen, rep. Debtor, Jacqueline Velasquez)
Docket 1
- NONE LISTED -
Debtor(s):
Jacqueline S. Velasquez Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Craig Wagstaff Represented By Sundee M Teeple
Joint Debtor(s):
Carrie Wagstaff Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Michael P. Alexson Represented By
C Scott Rudibaugh
Joint Debtor(s):
Janet M. Alexson Represented By
C Scott Rudibaugh
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Ryan Albert Lopez Castro Represented By Kristin R Lamar
Joint Debtor(s):
Amanda Crystal Lopez Represented By Kristin R Lamar
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jenny Doling, rep. Debtor, Felipe Garcia)
Docket 1
- NONE LISTED -
Debtor(s):
Felipe Fierro Garcia Represented By Jenny L Doling
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, Ethan Chin)
Docket 83
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 49
- NONE LISTED -
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Also #17
(Placed on calendar by order entered 5/19/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 52
- NONE LISTED -
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
11:01 AM
EH
Docket 46
- NONE LISTED -
Debtor(s):
Monica Aguirre Represented By Halli B Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 48
- NONE LISTED -
Debtor(s):
Margarito Martinez Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Rebecca Tomilowitz, rep. Debtor, Juan Martinez)
Docket 42
- NONE LISTED -
Debtor(s):
Juan Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Andy Nguyen, rep. Debtors, Michael 7 Lisa Colbus)
Docket 81
- NONE LISTED -
Debtor(s):
Michael Colbus Represented By Andy Nguyen
Joint Debtor(s):
Lisa Colbus Represented By
Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 108
- 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. Donna Travis, rep. Debtor, Ruben Macias)
Docket 95
- 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. Donna Travis, rep. Debtor, Gwendolyn Saunders)
Docket 96
- NONE LISTED -
Debtor(s):
Gwendolyn Priscilla Saunders Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 65
- NONE LISTED -
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 71
- NONE LISTED -
Debtor(s):
Alice Chow Represented By
Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 74
- 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 38
- 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
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 44
The Court, having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed three mortgage payments. The Court is inclined to:
-GRANT request under ¶ 2;
-GRANT request for relief from § 1301(a) co-debtor stay;
-GRANT waiver of FRBP 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.
In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium.
Debtor(s):
Christopher Bryan Dennis Represented By
11:00 AM
Movant(s):
M. Wayne Tucker
Freedom Mortgage Corporation Represented By
Dane W Exnowski Dana OBrien
Ciro Mestres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: GUILD MORTGAGE COMPANY LLC
EH
Docket 58
- NONE LISTED -
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Movant(s):
Guild Mortgage Company LLC Represented By Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ROYAL PACIFIC FUNDING CORPORATION
EH
(Tele. appr. Diana Torres-Brito, rep. creditor, Royal Pacific Funding Corporation)
(Tele. appr. Norma Duenas, rep. Debtors, Guilleremo and Cindy Reyna)
Docket 28
- NONE LISTED -
Debtor(s):
Guillermo Manuel Reyna Represented By Norma Duenas
Joint Debtor(s):
Cindy Reyna Represented By
Norma Duenas
Movant(s):
Royal Pacific Funding Corporation Represented By
Diana Torres-Brito
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CONSUMER PORTFOLIO SERVICES, INC.
EH
(Tele. appr. Merduad Jarfarnia, rep. creditor, Consumer Portfolio Services, Inc.)
Docket 33
The Court, having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed three car payments. 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 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):
Monica Irene Allain Represented By
11:00 AM
Movant(s):
Edgar P Lombera
Consumer Portfolio Services, Inc. Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
(Tele. appr. Sheryl Ith, rep. Ford Motor Credit Company LLC)
Docket 11
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):
Juan Navarro-Lagos Represented By Andy Nguyen
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
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):
Osman Bowser Represented By Edgar P Lombera
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
11:00 AM
Trustee(s):
Robert Whitmore (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, 1/24/20, 12/1/20,1/20/21
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
Adv#: 6:20-01074 Pringle v. Ghobrial
EH
Docket 24
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
2:00 PM
Adv#: 6:20-01066 Pringle v. Abdelmessih
EH
Docket 24
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
11:00 AM
From: 3/2/21,5/4/21
MOVANT: NATIONSTAR MORTGAGE
EH
(Tele. appr. Dane Exnowski, rep. creditor, Nationstar Mortgage)
Docket 84
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Rodolfo Aguiar Pro Se
Joint Debtor(s):
Irma D Aguiar Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski Arnold L Graff Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BRIDGECREST CREDIT COMPANY, LLC EH .
Docket 86
- NONE LISTED -
Debtor(s):
Alexander J Perfinowicz Pro Se
Joint Debtor(s):
Ingeborg Maria Pefinowicz Pro Se
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Ritchie J Pierce
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21,5/25/21
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
Docket 34
Movant to apprise Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Jeremiah M Moore Represented By Tom A Moore
Movant(s):
Freedom Mortgage Corporation Represented By Ashley Popowitz Dane W Exnowski
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21
(Case converted to chapter 7 on 3/30/21)
MOVANT: NEWREZ LLC d/ba SHELLPOINT MORTGAGE SERVICING
EH
Docket 45
- NONE LISTED -
Debtor(s):
Michael L. Williams Represented By Gregory Ashcraft
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Alexander G Meissner Julian T Cotton
Mary D Vitartas Dane W Exnowski
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
From: 4/27/21
MOVANT: WELLS FARGO BANK, NATIONAL ASSOCIATION
EH
Docket 55
Parties to apprise the Court of the status of mortgage arrears and of any adequate protection discussion.
APPEARANCES REQUIRED.
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Movant(s):
Wells Fargo Bank Represented By Sean C Ferry Eric P Enciso
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. creditor, Toyota Motor Credit Corporation)
Docket 40
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
APPEARANCES WAIVED. 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 Michael Johnson Represented By Jenny L Doling
Joint Debtor(s):
Thea Marie Johnson Represented By Jenny L Doling
11:00 AM
Movant(s):
Toyota Motor Credit Corporation, Represented By
Austin P Nagel
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
11:00 AM
MOVANT: CAM XI TRUST
EH
(Tele. appr. Reilly Wilkinson, rep. creditor, CAM XI Trust)
Docket 24
- NONE LISTED -
Debtor(s):
Amparo De Leon Represented By Julie J Villalobos
Movant(s):
CAM XI TRUST, its successors Represented By Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: JPMORGAN CHASE BANK
EH
(Tele. appr. Bryan Fairman, rep, creditor, JP Morgan Chase Bank)
Docket 14
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):
Rafael Andres Valenzuela Represented By Christopher J Langley
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
MOVANT: THE GOLDEN 1 CREDIT UNION
EH
(Tele. appr. Nicholas Couchot, rep. creditor, The Golden 1 Credit Union)
Docket 8
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 stay because § 1301(a) is not applicable to Chapter 7 cases
-GRANT relief from Rule 4001(a)(3) stay
-GRANT request under ¶ 2
-DENY alternative request under ¶ 11 as moot
APPEARANCES REQUIRED.
Debtor(s):
James Steven Perry Jr. Represented By Todd L Turoci
Joint Debtor(s):
Cynthia Kay Perry Represented By
11:00 AM
Movant(s):
Todd L Turoci
The Golden 1 Credit Union Represented By Nicholas S Couchot
Trustee(s):
Arturo Cisneros (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, 1/24/20, 12/1/20,1/20/21, 3/31/21, 6/28/21
EH
(Tele. appr. J. Ron Ignatuk, rep. Plaintiff, Michael Issa)
(Tele. appr. Scott Schomer, rep. Defendant, Anthony Piscano)
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 #12
(OST signed 5/25/21) EH
(Tele. appr. Lewis Adelson, rep. creditor, Tapatio Foods) (Tele. appr. James Selth, rep. Debtor, Fastrrak Foods, Inc.) (Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Steven Hamilton, rep. Managing Member for Debtor) (Tele. appr. Caroline Djang, Subchapter V trustee)
(Tele. appr. Harvey Berger, creditors, Berger, Williams & Reynolds, LLP)
Docket 99
- 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
2:00 PM
Also #11
From: 9/29/20, 11/24/20,12/1/20, 3/30/21
EH
(Tele. appr. Harvey Berger, creditors, Berger, Williams & Reynolds, LLP) (Tele. appr. Lewis Adelson, rep. creditor, Tapatio Foods)
(Tele. appr. James Selth, rep. Debtor, Fastrrak Foods, Inc.) (Tele. appr. Steven Hamilton, rep. Managing Member for Debtor) (Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Caroline Djang, Subchapter V trustee)
Docket 8
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Represented By
Crystle Jane Lindsey James R Selth Daniel J Weintraub
2:00 PM
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
(Placed on calendar by order entered 5/27/21)
(Tele. appr. Steven Fox, rep. Christoper De Mint, principle of the Debtor, DW Trim, Inc.)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 54
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
Also #13 From: 5/25/21 EH
(Tele. appr. Steven Fox, rep. Christoper De Mint, principle of the Debtor, DW Trim, Inc.)
(Tele. appr. Cameron Ridley, rep. United States Trustee)
Docket 102
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Maria Benavidez Represented By Allison F Tilton
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Mirelle Mayra Angelica Lasheras Represented By
Marlin Branstetter
Trustee(s):
Howard B Grobstein (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Phillip Gilbert Delgado Represented By Brian J Soo-Hoo
Joint Debtor(s):
Barbara Martha Delgado Represented By Brian J Soo-Hoo
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Olga Lydia Arroyo Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Doug Herbert Hanson Pro Se
Trustee(s):
Charles W Daff (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Andre Maurice Verastegui Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20,2/10,21, 4/7/21, 4/21/21,4/28/21
EH
(Tele. appr. Ali Matin, rep. Office of the United States Trustee) (Tele. appr. Ivan Kallick, rep. chapter 7 trustee)
(Tele. appr. Howard Grobstein, chapter 7 trustee)
Docket 464
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. Douglas Plazak, rep. chapter 7 trustee)
Docket 115
On October 16, 2017, Christy Hammond ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 5918 Ridgegate Dr., Chino Hills, CA 91709 (the "Property"). Schedule A identified the value of the Property as
$505,000. Schedule C claimed an exemption in the Property in the amount of
$100,000. Schedule D identified two creditors holding a security interest in the Property: (1) Wells Fargo Home Mortgage (in the amount of $378,000); and (2) CalHFA Mortgage Assistance Corporation (in the amount of $24,004).
On February 4, 2019, Trustee filed an application to employ a real estate broker; Debtor opposed the application on February 18, 2019. After a hearing, the Court approved the employment of a real estate broker on April 3, 2019.
On October 16, 2019, Trustee filed a motion for turnover and an adversary complaint against Kenneth Hammond, Debtor’s spouse, seeking declaration relief and turnover of property of the estate. On October 30, 2019, Debtor filed an opposition to the turnover motion, while also amended Schedule C to increase the claimed exemption
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in the Property to $175,000. On November 20, 2019, Trustee filed an objection to the increased homestead exemption. The motion for turnover of the Property and Trustee’s objection to Debtor’s homestead exemption have been extensively litigated and repeatedly continued. Both matters are still pending.
On May 19, 2021, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Yan Dong (the "Purchaser") for $686,000. Proposed payments from the proceeds include: (1) $378,000 for the secured claim of Wells Fargo Home Mortgage;
$24,004 for the secured claim of CalHFA Mortgage Assistance Corp; (3) $48,020 in closing costs (including a 5% brokers commission); and (4) $100,000-$175,000 for Debtor’s exemption. This distribution leaves $61,976 to $136,976 for the estate, minus any real property taxes to be satisfied. On May 26, 2021, Debtor 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.).
While the motion does not contain any detailed evidence of the Property’s marketing, the Court notes that: (1) the sale price significantly exceeds the scheduled value of the Property; (2) the sale price exceeds the original listing price of the Property; and (3)
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the real estate broker was employed in April 2019, more than two years ago. In the absence of any objection, the Court finds that these facts, and the fact that the proposed sale would generate a substantial benefit for the bankruptcy estate, sufficiently demonstrate that there is a sufficient business reason for the sale and that the sale is fair and reasonable.
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
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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 turnover provisions requested in the motion, and noting the non-opposition filed by Debtor, finds such provisions to be reasonable. The Court has reviewed the proposed broker’s commission and closing costs and finds such expenses to be reasonable.
Regarding the request for a good faith finding under 11 U.S.C. § 363(m), the Court notes that Movant has not submitted any evidence in support of the request.
Regarding the request to pay property taxes, the Court notes that there is no evidence submitted in support of the motion to establish the anticipated amount, if any, of property taxes to be paid.
Subject to potential overbidding, the Court is inclined to GRANT the motion in its
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entirety conditioned on evidence being provided to establish "good faith" under 11
U.S.C. § 363(m). Trustee to apprise the Court of the amount of anticipated property taxes to be paid from the sale proceeds.
APPEARANCES REQUIRED.
Debtor(s):
Christy Carmen Hammond Represented By Eric C Morris
Trustee(s):
Robert Whitmore (TR) Represented By Douglas A Plazak
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(Tele. appr. Misty Perry Isaacson, rep. chapter 7)
Docket 127
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: $ 2,633.47 Trustee Expenses: $ 27.13
Attorney Fees: $10,900 Attorney Expenses: $560.16
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):
Karin Olaya Represented By
Edward T Weber
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson
11:00 AM
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Docket 38
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: $ 682.41 Trustee Expenses: $ 32.34
Attorney Fees: $7,689.34 Attorney Costs: $438.65
Accountant Fees: $1,068.83 Accountant Costs: $300.33
Franchise Tax Board: The Court notes that the FTB amended its claim on March 16, 2021, increasing its administration claim to $1,667.41
APPEARANCES REQUIRED.
Debtor(s):
Mountain View Wholesale Services Represented By
Omero Banuelos
11:00 AM
Trustee(s):
Karl T Anderson (TR) Represented By Melissa Davis Lowe
11:00 AM
(Tele. appr. Jeremy Faith, rep. Howard Grobstein, chapter 7 trustee)
Docket 72
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: $ 4,750
Attorney Fees: $12,998.50 Attorney Costs: $116.05
Accountant Fees: $1,663 Accountant Costs: $29.00
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):
Ana Rosa Lopez Represented By Raymond Perez
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Trustee(s):
Howard B Grobstein (TR) Represented By Noreen A Madoyan Meghann A Triplett
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(b) imposing sanctions in the amount of $100 per day until Contemnors comply with the Order; and (c) imposing compensatory sanctions in the amount of the attorney fees and costs incurred by Trustee in connection with the Motion
(Full $2000.00 payment made 6/7/21)
From: 5/12/21 EH
(Tele. appr. Arturo Cisneros, chapter 7 trustee)
Docket 44
- NONE LISTED -
Debtor(s):
Brookville 79405 Inc Represented By William E Walls
Trustee(s):
Arturo Cisneros (TR) Represented By Arturo M Cisneros
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EH
(Tele. appr. Wendy Lock, rep. Nationstar Mortgage LLC) (Tele. appr. Frank Ruggier, rep. chapter 7 trustee)
Docket 58
On August 19, 2020, Lana Lu ("Debtor") filed a Chapter 7 voluntary petition. Schedule A listed certain real property located at 939 Bookvale Terrace, Ballwin, MO 630211 (the "Property"). Schedule A identified the value of the Property as $164,220. Schedule C claimed an exemption in the Property in the amount of $72,590. Schedule D identified two creditors holding a security interest in the Property: (1) Nationstar/Mr.Cooper (in the amount of $69,190); and (2) Specialized Loan Servicing (in the amount of $22,440).
On November 18, 2020, Trustee filed an objection to Debtor’s claimed homestead
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exemption. Debtor filed her opposition on December 2, 2020. After a hearing, the Court entered an order sustaining Trustee’s objection to Debtor’s claimed homestead exemption [Dkt. No. 40], disallowing the claimed exemption in its entirety. On January 4, 2021, Debtor filed a motion to reconsider the order disallowing the homestead exemption, and the Trustee filed opposition on January 12, 2021. On February 10, 2021, the Court entered an order denying the motion for reconsideration. On February 22, 2021, Debtor filed an amended Schedule C, claiming an exemption in the Property in the amount of $15,600 pursuant to Missouri law.
On January 22, 2021, the Court approved the employment of a real estate broker. On May 11, 2021, Trustee filed the instant sale motion. Trustee proposes to sell the Property to Nabela Mahmoud (the "Purchaser") for $195,000. Proposed payments from the proceeds include: (1) $69,233.55 for the secured claim of Bank of America,
N.A. (identified in schedules as Nationstar); (2) $28,261 for the secured claim of MERS (identified in schedules as Specialized Loan Servicing; (3) $12,082 for the judgment lien held by Tower Loan of Missouri, LLC; (4) $11,700 for the real estate brokers commission (6%); (5) $2,000 for closing costs; and (6) $15,600 on account of Debtor’s exemption, leaving $60,995.01 for the bankruptcy estate. On May 25, 2021, the Bank of New York Mellon filed a non-opposition to the sale motion (junior lien). On May 26, 2021, Nationstar Mortgage LLC filed a response to the sale motion (senior lien), requesting that certain standard provision be included in the order approving the sale.
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
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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.).
Based upon the evidence provided to the Court, the Court concludes that the proposed sale is supported by a sufficient business reason and is fair and reasonable. In support of these conclusions, the Court notes that: (1) the declaration of the real estate broker asserts that the Trustee received several written offers for the Property; (2) the Property is being sold for significantly more than its scheduled value; and (3) the sale of the Property would appear to generate sufficient funds to pay all claims in full.
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.
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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).
Good Faith Purchaser
Regarding the request for a good faith finding under 11 U.S.C. § 363(m), the Court notes that Movant has not submitted sufficient evidence in support of the request.
The Court is inclined to GRANT the motion in its entirety as modified by the response of Nationstar Mortgage, and conditioned on a declaration from Purchaser being provided to establish "good faith" under 11 U.S.C. § 363(m).
APPEARANCES REQUIRED.
Debtor(s):
Lana Lu Represented By
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Trustee(s):
Vanmai H Nguyen
Larry D Simons (TR) Represented By Frank X Ruggier Larry D Simons
1:00 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, 11/18/20,12/2/20,2/17/21, 4/7/21,4/21/21,5/26/21
EH
Docket 1
- NONE LISTED -
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
2:00 PM
Adv#: 6:20-01074 Pringle v. Ghobrial
From: 6/2/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John P. Pringle)
Docket 24
On December 8, 2017, Mark Bastorous & Bernadette Shenouda (collectively, "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 Ishak Ghobrial ("Defendant"). Trustee’s complaint contained three causes of action: (1) actual fraudulent transfer; (2) constructive fraudulent transfer; and (3) recovery of avoided transfers. On February 8, 2021, Trustee filed an amended complaint.
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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
$356,000 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On April 22, 2021, the Court entered Defendant’s default. On April 26, 2021, Trustee filed a motion for default judgment against Defendants, only requesting judgment as to the first and third causes of action. On May 13, 2021, the Court entered an order continuing the hearing on Trustee’s Motion for Default Judgment to June 9, 2021.
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.
Here, Defendant was served at 4739 E. Ashford Ave., Orange, CA 92867 and at 25571 Aragon Way, Yorba Linda, CA 92867. Trustee has submitted a declaration indicating that these two addresses were used on the checks issued to Ishak Ghobrial. The Court deems this evidence sufficient to establish service.
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 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). 11 U.S.C.
§ 544(b)(1) provides that a "trustee may avoid any transfer of an interest of the debtor
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in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor." And 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
Here, Debtors’ bankruptcy estate was consolidated with a variety of entities, include PIG, and, as such, the adequately alleged transfer from PIG to Defendants constitutes a transfer of Debtors’ property. The subject transfers, occurring between 2014 and 2016, occurred within four years of the bankruptcy filing, and, pursuant to the claims register in Debtors’ bankruptcy case, a creditor existed at the time the subject transfers were made.
Regarding intent, the Ninth Circuit 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, 704 (9th Cir. 2008). Here, the Court finds that the uncontroverted allegations in the complaint, taken as true, are sufficient to establish the existence of a Ponzi scheme, and, therefore, that Debtors’ actual intent to defraud has been established.
While the Ninth Circuit’s "netting rule," restricts the recovery in the context of a Ponzi scheme, that reduction is part of a good faith affirmative defense that has not been raised by Defendants here. See, e.g., Donell v. Kowell, 533 F.3d 762, 771 (9th Cir. 2008) ("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.’ However, there is a ‘good faith’ defense that permits an innocent winning investor to retain funds up to the amount of the initial outlay.").
For the reasons stated in the motion for default judgment and the complaint, the Court finds that recovery and preservation of the avoided transfers, under 11 U.S.C. §§ 550
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and 551, respectively, is appropriate.
The Court is inclined to GRANT the motion, entering judgment on the first and third claims for relief. Trustee to inform Court of intentions regarding second claim.
APPEARANCES REQUIRED.
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
2:00 PM
Adv#: 6:20-01066 Pringle v. Abdelmessih
From: 6/2/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John P. Pringle)
Docket 24
On December 8, 2017, Mark Bastorous & Bernadette Shenouda (collectively, "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 Noshi Abdelmessih ("Defendant"). Trustee’s complaint contained three causes of action: (1) actual fraudulent transfer; (2) constructive fraudulent transfer; and (3) recovery of avoided transfers. On February 8, 2021, Trustee filed an amended complaint.
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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
$55,242 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On April 22, 2021, the Court entered Defendant’s default. On April 26, 2021, Trustee filed a motion for default judgment against Defendants, only requesting judgment as to the first and third causes of action. On May 13, 2021, the Court entered an order continuing the hearing on Trustee’s Motion for Default Judgment to June 9, 2021.
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.
Here, Defendant was served at 14741 Bonanza Rd., Victorville, CA 92392 and at 16498 Apple Valley Rd., Apple Valley, CA 92307. Trustee has submitted a declaration indicating the latter address was used on the checks issued to Defendant and that the former address was located through a Westlaw Public Records search. The Court deems this evidence sufficient to establish service.
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 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). 11 U.S.C.
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§ 544(b)(1) provides that a "trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor." And 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
Here, Debtors’ bankruptcy estate was consolidated with a variety of entities, include PIG, and, as such, the adequately alleged transfer from PIG to Defendants constitutes a transfer of Debtors’ property. The subject transfers, occurring between December 2013 and June 2014, occurred within four years of the bankruptcy filing, and, pursuant to the claims register in Debtors’ bankruptcy case, a creditor existed at the time the subject transfers were made.
Regarding intent, the Ninth Circuit 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, 704 (9th Cir. 2008). Here, the Court finds that the uncontroverted allegations in the complaint, taken as true, are sufficient to establish the existence of a Ponzi scheme, and, therefore, that Debtors’ actual intent to defraud has been established.
While the Ninth Circuit’s "netting rule," restricts the recovery in the context of a Ponzi scheme, that reduction is part of a good faith affirmative defense that has not been raised by Defendants here. See, e.g., Donell v. Kowell, 533 F.3d 762, 771 (9th Cir. 2008) ("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.’ However, there is a ‘good faith’ defense that permits an innocent winning investor to retain funds up to the amount of the initial outlay.").
For the reasons stated in the motion for default judgment and the complaint, the Court
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finds that recovery and preservation of the avoided transfers, under 11 U.S.C. §§ 550 and 551, respectively, is appropriate.
The Court is inclined to GRANT the motion, entering judgment on the first and third claims for relief. Trustee to inform Court of intentions regarding second claim.
APPEARANCES REQUIRED.
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
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
Docket 22
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Represented By Michael Smith
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
Carmela Pagay
Trustee(s):
Lynda T. Bui (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:21-01045 Montejano v. Rios, Jr.
(Tele. appr. Michael Smith, rep. Defendant, Rodolpho Rios, Jr.)
Docket 4
- NONE LISTED -
Debtor(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Defendant(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Plaintiff(s):
Armando Montejano Represented By Garrick A Hollander
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:21-01042 Red Rock Minerals LP et al v. Parker
EH
(Tele. appr. J. Luke Hendrix, rep. Defendant)
Docket 6
- NONE LISTED -
Debtor(s):
Bruce A. Parker Represented By Lazaro E Fernandez
Defendant(s):
Bruce A. Parker Represented By
J. Luke Hendrix
Plaintiff(s):
Red Rock Minerals LP Pro Se
Paul K Singh Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:21-01042 Red Rock Minerals LP et al v. Parker
Also #19 EH
(Tele. appr. J. Luke Hendrix, rep. Defendant)
Docket 1
- NONE LISTED -
Debtor(s):
Bruce A. Parker Represented By Lazaro E Fernandez
Defendant(s):
Bruce A. Parker Pro Se
Plaintiff(s):
Red Rock Minerals LP Pro Se
Paul K Singh Pro Se
Trustee(s):
Robert Whitmore (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, 4/30/20,12/17/20, 5/13/21,5/27/21
EH
(Tele. appr. Joey De Leon, 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
11:00 AM
West Coast Plus Realty, Inc. Pro Se
Grand Capital Group Pro Se
M&M Associates Pro Se
Plaintiff(s):
Margarito Martinez Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Placed on calendar by order entered 5/13/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Karel Rocha, rep, Debtors, Thomas and Tamara Butler)
Docket 69
- NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 32
- NONE LISTED -
Debtor(s):
Leo F. Bly Represented By
Suzette Douglas
Movant(s):
Leo F. Bly Represented By
Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Laleh Ensafi, rep. Debtor, Franklin & Lilibeth Albano)
Docket 1
- NONE LISTED -
Debtor(s):
Franklin A. Albano Represented By Laleh Ensafi
Joint Debtor(s):
Lilibeth Albano Represented By Laleh Ensafi
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 1
- NONE LISTED -
Debtor(s):
Vanessa Escobedo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Yelena Gurevich, rep. Debtor, Malta Lambert)
Docket 1
- NONE LISTED -
Debtor(s):
Malta Centeno Lambert Represented By Yelena Gurevich
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Sheryl Ith, rep. creditor, ACAR Leasing LTD, dba GM Financial Leasing)
Docket 1
- NONE LISTED -
Debtor(s):
Alicia Cabello Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joseline Medrano, rep. Debtors, Donald and Kelly Murphy)
Docket 1
- NONE LISTED -
Debtor(s):
Donald L Murphy Represented By Joselina L Medrano
Joint Debtor(s):
Kelly M Murphy Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Elsa L. Villanueva Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 124
- NONE LISTED -
Debtor(s):
Fabiola Puttre Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtor, Juan Franco)
Docket 104
- NONE LISTED -
Debtor(s):
Juan Jose Franco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Gerald E Miller Represented By Paul Y Lee
Joint Debtor(s):
Shirley Miller Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 119
- NONE LISTED -
Debtor(s):
Ryan Patrick McHugh Represented By Paul Y Lee
Joint Debtor(s):
Jennifer Lynne McHugh Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor, Darryle Barker)
Docket 47
- NONE LISTED -
Debtor(s):
Darryle Barker Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Donna Travis, rep. Debtors, Jose & Maria Aguilar)
Docket 70
- NONE LISTED -
Debtor(s):
Jose C Aguiar Represented By
Dana Travis
Joint Debtor(s):
Maria Fatima Aguiar Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Julie Villalobos, rep. Debtor, Andre Jackson)
Docket 31
- NONE LISTED -
Debtor(s):
Andre B. Jackson Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 50
- NONE LISTED -
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Rebecca Tomilowitz, rep. Debtor, Angelita Kurmen)
Docket 49
- NONE LISTED -
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Rebecca Tomilowitz, rep. Debtor, Juan Martinez)
Docket 42
- NONE LISTED -
Debtor(s):
Juan Martinez Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Rebecca Tomilowitz, rep. Debtor, Eusebia Rios)
Docket 54
- NONE LISTED -
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
(Holding date)
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 3/4/21, 9/15/20, 10/18/20 ,2/3/21, 3/3/21,5/12/21
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
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
1:00 PM
Adv#: 6:20-01072 Pringle v. Goldvilla Ltd
of Service) by David M Goodrich on behalf of John P. Pringle against Goldvilla. (RE: related document(s)1 Adversary case 6:20-ap-01072. Complaint by John
P. Pringle against Goldvilla. (Charge To Estate - $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) Modified on 5/12/2020 filed by Plaintiff John P. Pringle). (Goodrich, David)
(Another Summons Issued 4/5/21)
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 23
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla Ltd Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By
1:00 PM
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
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, 9/28/20,2/1/21, 4/12/21 EH
(Tele. appr. David Goodrich, rep. Planitiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01077 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, 9/28/20,11/30/20, 2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01078 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Represented By
Michael A Wallin
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
1:00 PM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
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, 9/28/20,11/30/20,2/1/21,4/12/21
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
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#: 6:20-01082 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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#: 6:20-01089 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, 9/28/20,11/30/20,2/1/21,4/12/21
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
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#: 6:20-01090 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
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#: 6:20-01053 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
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
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
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#: 6:20-01055 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01059 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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#: 6:20-01063 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: 9/28/20,11/30/20,2/1/21,4/12/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
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#: 6:20-01064 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01066 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01067 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01071 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, 9/28/20,11/30/20,2/1/21,4/12/21
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#: 6:20-01074 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
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
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#: 6:20-01076 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
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#: 6:20-01087 Pringle v. Zumut et al
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
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#: 6:20-01091 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01093 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01094 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, 9/28/20,11/30/20,2/1/21,4/12/21
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: 9/30/20,11/30/20,2/1/21,4/12/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
From: 11/30/20,2/1/21,4/12/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01061 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, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
1:00 PM
Trustee(s):
David M Goodrich
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
1:00 PM
Adv#: 6:20-01127 Pringle v. Awad
(HOLDING DATE)
From 9/30/20,1/13/21, 3/17/21,4/12/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 5
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
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, 9/28/20,11/30/20,2/1/21,4/13/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
11:00 AM
From: 5/25/21
MOVANT: MEB LOAN TRUST IV
EH
(Tele. appr. Wendy Locke, rep. MEB Loan Trust IV)
Docket 53
- NONE LISTED -
Debtor(s):
William Edward Walker Represented By Jenny L Doling
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling
Movant(s):
MEB Loan Trust IV Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BANK OF AMERICA
EH
(Tele. appr. Seema Sood, rep. Debtor, Donna Upton) (Tele. appr. Erin McCartney, rep. Bank of America)
Docket 115
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of arrears.
APPERANCES REQUIRED.
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Movant(s):
Bank of America, N.A. Represented By Raymond Jereza
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK
EH
(Tele. appr. Nathan Berneman, rep. Wells Fargo Bank)
Docket 59
Service: Proper Opposition: Debtor
Parties to apprise Court of the status of arrears and any adequate protection discussions.
APPEARANCES REQUIRED.
Debtor(s):
Michael Ray Sandoval Represented By Jaime A Cuevas Jr.
Movant(s):
Option One Mortgage Loan Trust Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: HYUNDAI LEASE TITLING TRUST
EH
(Tele. appr. Jennifer Wang, rep. creditor, Hyundai)
Docket 37
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 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 Aaron Graves Represented By Carey C Pickford
Joint Debtor(s):
Kendra Clairice Graves Represented By
11:00 AM
Movant(s):
Carey C Pickford
Hyundai Lease Titling Trust Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
Docket 44
- NONE LISTED -
Debtor(s):
Kevin Odinni Lawrence Represented By Summer M Shaw
Joint Debtor(s):
Vonetta Isioma Lawrence Represented By Summer M Shaw
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. John Asuncion, special appearance for Suzette Douglas, rep. Debtor, Martha Morales)
Docket 32
Service: Proper Opposition: None
Parties to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
.
Debtor(s):
Martha E Morales Represented By Suzette Douglas
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AMERICREDIT FINANCIAL SERVICES, INC.
EH
(Tele. appr. Jennifer Wang, rep. creditor, American Financial Services, Inc.)
Docket 32
Service: Proper Opposition: None
The instant motion for relief from stay was filed by Movant after a vehicle in which Movant had a security interest was totaled. Movant wishes to collect from the insurance policy.
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
11:00 AM
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 ready for trial.
11:00 AM
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 no proceeding has of yet been commenced, the remainder of the factors weigh in favor of relief from stay being granted because Movant "seeks recovery primarily from third parties and agrees that the stay will remain in effect as to the enforcement of any resulting judgment against the Debtor." Because Movant is not seeking to recover from Debtors or the bankruptcy estate, granting relief from stay 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)
-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):
Ramon Delgado Jr. Represented By
George C Panagiotou
Joint Debtor(s):
Maribel Delgado Represented By
George C Panagiotou
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 J & K EQUITIES, INC.
EH
(Tele. appr. Benjamin Levinson, rep. J & K Equities, Inc.)
Docket 29
Service: Proper Opposition: None
The Court is inclined to:
-GRANT request for 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 ¶ 13 as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Angelina Vasquez Represented By
Gary S Saunders- SUSPENDED -
11:00 AM
Movant(s):
J & K Equities, Inc. Represented By
Benjamin R Levinson ESQ
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
MOVANT: LOS ANGELES FEDERAL CREDIT UNION
EH
Docket 9
- NONE LISTED -
Debtor(s):
Jeffery Warren Scheibe Represented By Dana Travis
Joint Debtor(s):
Selina Martina Scheibe Represented By Dana Travis
Movant(s):
Los Angeles Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: THE GOLDEN 1 CREDIT UNION
EH
(Tele. appr. Nicholas Couchot, rep. creditor, The Golden 1 Credit Union)
Docket 9
Service: Proper Opposition: None
The Court is inclined to:
-GRANT requests for relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2);
-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):
Fermin David Rios Cabrera Represented By Aaron Lloyd
Movant(s):
The Golden 1 Credit Union Represented By Nicholas S Couchot
11:00 AM
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
California 91764
(Withdrawal of Motion filed 6/7/21)
MOVANT: SPECIALIZED LOAN SERVICING LLC
From: 1/5/21,2/16/21,5/25/25 EH
Docket 36
- NONE LISTED -
Debtor(s):
Miguel Pinedo Represented By James G. Beirne
Joint Debtor(s):
Laura Pinedo Represented By
James G. Beirne
Movant(s):
Specialized Loan Servicing LLC Represented By
John Rafferty Austin P Nagel
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 5/25/21 Also #12
MOVANT: BARSTOW DALUVOY FIRST MORTGAGE INVESTORS, LP
EH
(Tele. appr. Dawn Coulson, rep. Arvind Doshi and Chandrika A. Doshi, Trustees of the Doshi Family Trust, dated 7/24/2006)
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. William Beall, rep. Daluvoy First Mortgage Investors, LP)
Docket 66
Raman Enterprises, LLC ("Debtor") filed a Chapter 11 voluntary petition on December 8, 2020. Debtor’s only material assets are two parcels of real property, one in Barstow (zoned commercial) (the "Barstow Property") and one in Riverside (zoned residential) (the "Riverside Property"). Schedule A valued these real estate parcels at
$1.95 million each. On Schedule D. Debtor listed three liens against each parcel. The Barstow Property was identified as encumbered by a voluntary lien in the amount of
$761,099 and a tax lien in the amount of $17,631.66. The Riverside Property was
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encumbered by a voluntary lien in the amount of $525,000 and a tax lien in the amount of $96,049.76. Both properties were encumbered by a cross-collateralized lien of an unknown amount, although Proof of Claim Number 4 identifies the amount of the cross-collateralized lien as $565,098.40.
On January 11, 2021, the Court entered a scheduling order that provided for a deadline to file a Chapter 11 plan and disclosure statement of July 15, 2021. Debtor subsequently employed counsel and a real estate broker to market the two properties.
On April 20, 2021, Barstow Daluvoy First Mortgage Investors, LP ("Movant"), the holder of the voluntary lien against the Barstow Property, filed a motion for relief from the automatic stay. Movant seeks relief under 11 U.S.C. § 362(d)(1)-(3). On May 11, 2021, Debtor filed an opposition. On May 18, 2021, Movant filed a reply.
Regarding 11 U.S.C. § 362(d)(1), Movant argues that the case was filed in bad faith and that the fair market value of the properties is declining, eliminating any adequate protection for Movant. Regarding 11 U.S.C. § 362(d)(2), Movant asserts that there is no equity in the Barstow Property and that Debtor does not have reasonable prospects for reorganizing. Regarding 11 U.S.C. § 362(d)(3), Movant asserts that the Court should treat the Barstow and Riverside properties as a "single project," and if the Court finds that this is a single asset real estate case, then § 362(d)(3) is clearly applicable. The Court notes that Movant has not maintained its argument under
§ 362(d)(3) in the reply.
11 U.S.C. § 362(d)(1)
There are two proffered bases for relief under § 362(d)(1): (1) lack of adequate protection; and (2) bad faith. Regarding the former argument, it would appear that uncontested that Movant presently has an adequate equity cushion; indeed, the figures in the Motion (pgs. 7-8) indicate an equity cushion in excess of 50%. Pointing to the continuing decline in the valuations declared by Debtor, and the intention to continue decrease the listing price, Movant contends that its equity cushion is eroding.
The Court notes, however, that Debtor’s intent to facilitate a quick sale by steadily decreasing the listing price does not necessarily indicate any decline in value. The steady decline in the properties’ valuations does place the credibility of the valuations
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in question, but § 362(g)(1) places the burden on the issue of equity on the Movant. Here, lacking evidence that convincingly establishes that the Barstow Property is truly declining in value, and noting that Movant’s argument that it is not adequately protected appears premature at the present time, the Court cannot find that Movant lacks adequate protection.
The Court also is not convinced by Movant’s argument that this case was filed in bad faith. The fact that there are merely five creditors and that there were transfers of the subject property in 2018 and 2019 is not unusual for the type of Debtor that exists here – a business entity that was created for the sole purpose of owning parcels of real property. Instead, the record before the Court suggests that when Debtor filed this case it was reasonably plausible that Debtor would be able to sell the properties at a price that would enable it to pay all creditors in full.
11 U.S.C. § 362(d)(2) and (3)
First, the Court notes that Debtor does not appear to contemplate a reorganization. Instead, as indicated in the previous status report in this case, "Debtor believes its bankruptcy estate is solvent and can be expediently liquidated in this chapter 11 case." [Dkt. No. 65, pg. 2].
Turning to whether there is equity, the dispute between Movant and Debtor centers around the treatment of the cross-collateralized lien. Debtor contends that in the aggregate there is equity in the Barstow and Riverside properties, although it would appear, based on current listing prices, and because of the cross-collateralized lien, the amount of the liens secured against the Barstow Property exceeds its fair market value.
Debtor, however, asks this Court to attribute half (or all) of the value of the cross- collateralized lien to the Riverside Property, thereby reducing the amount attributable to the Barstow Property and creating equity in the latter. The Court notes that Debtor has not provided any caselaw supporting its proposed modification of the simply equity calculation. Importantly, Debtor’s argument that the Court should consider the aggregate value of the two properties, and the aggregate value of the liens attaching to those properties, essentially asks this Court to consider the properties as a single project.
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But in its opposition to Movant’s request under § 362(d)(3), Debtor points out that the two subject parcels are located in different counties and are zoned different, and therefore are not a single project. Outside of the context of a liquidation in bankruptcy, these two parcels would not appear to be part of a common project. In these Chapter 11 liquidation proceedings, however, the "project" is simple – sell the two properties and satisfy the existing liens, including the cross-collateralized lien.
In short, it appears plainly inconsistent for Debtor to assert that these two parcels of property are not a common project and should be treated separately, while also asking this Court to acknowledge that it intends to sell the two properties, generate a common pot, and pay all creditors. Regardless of their "use" in a different context, in the context of the proceedings at issue here, the properties would appear to be part of a "single project," and thus 11 U.S.C. § 362(d)(3) may be satisfied. And, if treated separately, as the Court believes is the correct approach, then it would appear that 11
U.S.C. § 362(d)(2) has been satisfied.
APPEARANCES REQUIRED.
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Movant(s):
Barstow Daluvoy Project Lenders Represented By
William C Beall
2:00 PM
Also #11
From: 1/5/21, 4/6/21,4/20/21,5/25/21 EH
(Tele. appr. Dawn Coulson, rep. Arvind Doshi and Chandrika A. Doshi, Trustees of the Doshi Family Trust, dated 7/24/2006)
(Tele. appr. Ali Matin, rep. United States Trustee)
(Tele. appr. William Beall, rep. Daluvoy First Mortgage Investors, LP)
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
11:00 AM
(Tele. appr. Lynda Bui, chapter 7 trustee)
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: $ 2,546.72 Trustee Expenses: $ 353.50
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):
Earlene Larraine Brandon Aubrey Represented By
Daniel King
Trustee(s):
Lynda T. Bui (TR) Represented By
Cory Watson Attorneys
11:00 AM
11:00 AM
(Tele. appr. Caroline Djang, rep. chapter 7 trustee)
Docket 226
- NONE LISTED -
Debtor(s):
James Lloyd Walker Represented By
Andrew Edward Smyth William J Smyth
Trustee(s):
Robert Whitmore (TR) Represented By Caroline Djang
11:00 AM
From: 5/26/21) EH
(Tele. appr. Misty Perry Isaacson, rep. chapter 7 trustee) (Tele. appr. Gary M. Bullock, special counsel for trustee)
Docket 59
No opposition has been filed. Service was proper.
At the previous hearing, the Court indicated that it was inclined to approve Trustee, General Counsel, and Accountants’ administrative fees and costs. With respect to Gary M. Bullock & Associates, P.C., Special Counsel’s ("Counsel") fees, the Court continued the hearing for Counsel to supplement its fee application. The Court appreciates that the supplement clarified the context of Counsel’s work and eased its review of the billing records. The Court understands there were issues regarding marijuana growing unlicensed at Debtors’ residence, one of the Oregon Trust properties Debtors had an interest in, which presented a risk to the estate.
Additionally, there were outstanding taxes on the property. Counsel listed 27 hours billed to draft a motion for receivership of the property in connection to these issues.
Ultimately, however, according to Counsel’s narrative these issues were resolved when Ms. Kapoor produced documents showing Debtors’ expired 2019 marijuana license and paid the back taxes. As a result, Special Counsel did not file the receivership motion. As there was no explanation detailing how long it took to
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resolve these issues, and whether the length of time was exacerbated by Ms. Kapoor or her attorney’s lack of cooperation, the Court looked to the billing records. Per the 3/31/2021 entry it appears that the receivership motion was already being drafted. It is also less then clear to the Court whether these issues were confirmed at the time of the 4/8/2021 entry, which is vague, and simply states: "verified with realtor that taxes are due on property; will contact State of Oregon to determine if bankrupt has a license to grow marijuana." On 4/7/2021, there is an entry for the preparation of document production, which the Court assumes was for Ms. Kapoor. It appears that by 4/24/2020, Counsel received discovery responses. Certainly by 5/19/2020, there was confirmation of the 2019 license, as the entry states: "revise motion for appointment of receiver and supporting declarations to reflect recent development and confirmation of the 2019 hemp license." Aside from the apparent lack of necessity in revising the motion at this point, it appears that the issues took about a month and a half to resolve based solely on the billing records.
As shown by the Court’s review, the billing records also do not provide any information on whether Ms. Kapoor or her attorney were uncooperative with the discovery requests, nor is there any indication that Counsel tried to reach out before drafting the receivership motion. The Court can, thus, only conclude that drafting the receivership motion provided no benefit to the estate and was largely an unreasonable task pursuant to 11 U.S.C. §330(a)(4)(A)(ii). Accordingly, the 27 hours billed for the abortive motion is excessive. The Court also points out that in paragraph 26 of the supplement there is an addition error in the fees column. Accordingly, the Court is inclined to reduce Counsel’s fees by 24 hours, allowing appropriate time to research and strategize regarding the receivership motion. This lowers the $7,639.75 fees billed to $859.75 (.7 hour billed at $300), for a total reduction of $6,780 in Counsel’s fees.
The Court is inclined to GRANT Counsel’s costs in the amount of $927.25 and fees in the amount of $32,547.62 ($39,327.62 less $6,780, as requested in the corrected memorandum filed on June 10, 2021 [Dkt. 68]).
APPEARANCES REQUIRED. However, if applicant does not appear, applicant will be deemed to have submitted to this tentative. Trustee to lodge order within 7 days.
11:00 AM
Debtor(s):
Nathan Loren Ingram Represented By
Bryant C MacDonald
Joint Debtor(s):
Bryta Lee Ingram Represented By
Bryant C MacDonald
Trustee(s):
Karl T Anderson (TR) Represented By
Misty A Perry Isaacson Gary M Bullock
11:00 AM
(Tele. appr. Lynda Bui, chapter 7 trustee)
Docket 80
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: $ 1,643.40 Trustee Expenses: $ 130.20
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):
Joseph F. Mark Represented By Keith Q Nguyen
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
(Tele. appr. Nancy Hoffmeier Zamora, rep. chapter 7 trustee)
Docket 39
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, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 1,643.40 Trustee Expenses: $ 0.00
Attorney Fees: $ 8,579.04 Attorney Expenses: $ 629.50
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):
Anabel Escamilla Represented By Kateryna Bilenka
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Represented By Nancy H Zamora
11:00 AM
EH
(Tele. appr. Everett Green, rep. United States Trustee)
Docket 24
6/23/21
Joint Debtors, Sotero Chandler Elias Ramas, III and Harvy Yojany Ortiz Campo, filed a Chapter 7 voluntary petition for bankruptcy on February 22, 2021. The deadline to object to discharge was May 28, 2021. On May 28, 2021, the U.S. Trustee filed the instant motion seeking to extend the deadline to object to discharge to July 28, 2021, having only been made aware of potential grounds for objection the day before the deadline expired. For the reasons set forth in the motion, service appearing proper, and no opposition having been filed, the Court finds cause exists to extend the deadline pursuant to FED R. BANKR. P. Rule 4004(b).
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):
Sotero Chandler Elias Ramas III Represented By
Ruben Salazar Anna Landa
Joint Debtor(s):
Harvy Yojany Ortiz Campo Represented By Ruben Salazar Anna Landa
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Trustee(s):
Todd A. Frealy (TR) Represented By Anna Landa
11:00 AM
(Placed on calendar by order entered 6/2/21) EH
Docket 8
6/23/2021
On May 3, 2021, Silvano Pivato and Victoria Ann Pivato ("Debtors"), filed a Chapter 7 voluntary petition ("Ch. 7 Petition"). On May 12, 2021, Debtors filed the instant Motion for Reassignment of Case filed in Improper Division (Intra-district Transfer). On June 1, 2021, Debtors filed a declaration that no party requested a hearing on the motion. On June 2, 2021, the Court set a hearing on the motion for June 23, 2021.
The Debtors’ motion shows that they are current residents of Riverside County, which is in the Eastern Division. The Debtors assert that the Northern Division is the proper venue because:
Debtors were residents of Oxnard, California until recently moving to La Quinta, California due to the lower cost of living;
Debtors resided in Ventura County longer than any other county over the last 180 days before filing their Ch. 7 Petition;
The Northern Division is generally the default location for 341(a) hearings for Debtors with a residence in Ventura County.
No motion has been filed opposing Debtors’ motion to transfer division.
DISCUSSION
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L.B.R. 1071-1 provides, in relevant part:
Filing of Petition
Unless otherwise ordered by the court, a petition commencing a case under the Bankruptcy Code must be filed with the Clerk of the United States Bankruptcy Court for the Central District of California in the "applicable division"
The "applicable division" is determined by the location of the debtor’s residence, principal offices, officers, and books and records, or where the majority of the debtor’s assets are located based on a book value determination as set forth on the debtor’s most current balance sheet.
Petition Filed in Wrong Division
If a petition is filed in the wrong division, the court may, on its own, transfer it to the appropriate division or retain the case.
In the present case, Debtors were residents of Riverside County, California at the time they filed their Ch. 7 Petition. Thus, under L.B.R. 1071-1(a)(1), Riverside Division is the "applicable division" for the Debtor’s Petition. However, this does not preclude the Court from transferring the case to the Northern Division. FED. R. BANKR. P. Rule 1014(a)(1) provides that:
Dismissal and transfer of cases
Cases filed in proper district. If a petition is filed in the proper district, the court, on the timely motion of a party in interest or on its own motion, and after hearing on notice to the petitioners, the United States trustee, and other entities as directed by the court, may transfer the case to any other district if the court determines that the transfer is in the interest of justice or for the convenience of the parties.
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Although Rule 1014 only explicitly discusses transferring between districts, the Rule has been applied to intra-district motions for reassignment. See In re Elliott, No. 1:11- BK-23855-VK, 2014 WL 318222, Bankr. C.D. Cal. Jan. 29, 2014) (Applying Rule
1014 to an intra-district motion for change of venue, denying the motion as not in the interest of justice).
In the present case, Debtors must demonstrate that transferring their case to the Northern Division is either in the interest of justice or for the convenience of the parties. Although no objections have been filed, the motion contains no evidence or explanations as to how Debtors would be convenienced by transferring their case to the Northern Division when they currently live in the Eastern Division and are not claiming any significant amount of assets in the Northern Division.
TENTATIVE RULING
Debtors to explain on the record reasons sufficient to clarify their request to transfer divisions.
APPEARANCES REQUIRED.
Debtor(s):
Silvano Pivato Represented By William E. Winfield
Joint Debtor(s):
Victoria Ann Pivato Represented By William E. Winfield
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:19-01114 Sonnenfeld v. Diaz et al
From: 10/28/20,3/31/21,5/5/21 EH
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#: 6:20-01171 Daff (TR) v. Karadas
Complaint by Charles W Daff (TR) against Sean Karadas. ($350.00 Fee Charge To Estate). To Revoke and Deny Discharge of Debtor (Attachments: # 1 Summons # 2 Adversary Cover Sheet) Nature of Suit: (41 (Objection / revocation of discharge - 727(c),(d),(e))) (Daff (TR), Charles) filed by Plaintiff Charles W Daff (TR), Trustee Charles W Daff (TR)). (Attachments: # 1 Appendix Summons) (Daff (TR), Charles)
Also #10
From: 4/28/21,5/26/21 EH
(Tele. appr. Charles Daff, chapter 7 trustee)
Docket 43
- 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
2:00 PM
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 Daff, chapter 7 trustee)
Docket 53
6/23/21
On November 20, 2017, Sean Karadas ("Debtor") filed a Chapter 7 voluntary petition. On March 19, 2018, Debtor received his discharge.
On September 19, 2018, Trustee filed a motion for turnover of property of the estate. On October 24, 2018, the Court granted the motion, ordering Debtor to turn over
$327,653 in loan proceeds. On January 22, 2019, the Court issued an order to show cause why Debtor should not be held in contempt for failure to comply with the turnover order. After a hearing held on February 27, 2019, the Court found Debtor in contempt and sanctioned him an additional $3,896.05. Debtor, however, took no action to purge the contempt and, on June 27, 2019, the Court issued a body detention order. The United States Marshals have not yet located Debtor, reporting that he may have moved to Turkey.
On October 11, 2020, Trustee filed a complaint against Debtor seeking to revoke his discharge under 11 U.S.C. § 727(a)(6)(A). On November 17, 2020, the Clerk entered Debtor’s default. On December 14, 2020, Trustee filed a motion for default judgment.
2:00 PM
On January 21, 2021, Trustee’s motion for default judgment was denied without prejudice. On March 3, 2021, Trustee, based on the same complaint, filed a second motion for default judgment against Debtor. On March 4, 2021, the Clerk entered Debtor’s default. On April 6, 2021, Trustee’s second motion for default judgment was denied without prejudice.
On April 9, 2021, Trustee filed an amended complaint against Debtor seeking to revoke his discharge under 11 U.S.C. § 727(d)(3). On May 20, 2021, the Clerk entered Debtor’s default. On May 21, 2021, Trustee filed the instant motion for default judgment. No opposition was filed.
FED. R. CIV. P. Rule 55 provides that "a party against whom a judgment for a affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must 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.
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.
2:00 PM
Here, service appears proper, as the Debtor was served at 8990 19th Street, Apt. 294, Rancho Cucamonga, California 91701, the address provided by the notice of address change filed on May 29, 2018.
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 cites 11 U.S.C. § 727 subsections (a)(6)(A) and (d)(3), which provide:
(a) The court shall grant the debtor a discharge, unless –
the debtor has refused, in the case –
to obey any lawful order of the court, other than an order to respond to a material question or to testify…
(d) On request of the trustee a creditor, of the United States trustee, and after notice and a hearing, the court shall revoke a discharge granted under subsection (a) of this section if –
(3) the debtor committed an act specified in subsection (a)(6) of this
section.
Here, Trustee has demonstrated that Debtor failed to comply with the Court’s October 24, 2018 turnover order and was found to be in contempt of court on February 27, 2019. The Trustee’s motion is in proper form and contains sufficient evidence to satisfy the requirements under § 727 (d)(3). Accordingly, the Court, noting Debtor’s repeated failure to comply with its orders and accepting the allegations as true, is inclined to grant default judgment.
2:00 PM
The Court is inclined to GRANT Trustee’s motion and revoke Debtor’s discharge.
APPEARANCES REQUIRED.
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#: 6:20-01083 Pringle v. Eskarous
From: 5/12/21 EH
Docket 17
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous 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
2:00 PM
David M Goodrich Reem J Bello
2:00 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)
Also #11
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/12/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Represented By Michael A Corfield
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
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Adv#: 6:20-01006 Eggleston et al v. Ramirez
EH
(Tele. appr. Scott Talkov, rep. Defendant, Corinne Ramirez)
Docket 91
6/23/21
On October 24, 2019, Corinne Lara Ramirez ("Defendant") filed a Chapter 7 voluntary petition. On October 5, 2020 the order of discharge was entered closing the bankruptcy case on October 6, 2020.
On January 22, 2020, David Eggleston, Karin Doerr, Richard Alvarado, and Yan Sum Alvarado ("Plaintiffs") filed a non-dischargeability complaint ("Complaint") against Defendant pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6) based on investments made to Mountain Vista Winery & Vineyard, LLC, of which Defendant, Yvonne Trezona, and George Walker were founding members.
On December 1, 2020, Plaintiffs filed an amended complaint ("FAC"). On December 3, 2020, the Court entered an order granting Defendant’s first motion to dismiss as to the § 523(a)(6) second cause of action and denying Defendant’s motion as to the § 523(a)(2)(A) first cause of action, granting Plaintiffs leave to amend the first cause of action.
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On December 23, 2020, Defendant filed a second motion to dismiss arguing the allegations in the FAC do not meet the heighted pleading requirement of FED. R. CIV. P. Rule 9(b). The Court granted Defendant’s motion with leave to amend pursuant to order entered on February 10, 2021.
On February 19, 2021, Plaintiff’s filed the second amended complaint ("SAC"). On March 22, 2021, Defendant filed a third motion to dismiss for failure to state a claim. On May 12, 2021, the Court entered an order granting Defendant’s motion to dismiss the SAC without leave to amend.
In the instant motion [Dkt. 93] filed on May 26, 2021, Counsel for Defendant seeks to recover attorney fees from Plaintiffs in the amount of $29,821.84 based on provisions in the Mountain Vista Winery & Vineyard, LLC Operating Agreement ("Operating Agreement") and two promissory notes. Plaintiffs filed an opposition on June 4, 2021. Defendant filed a reply on June 15, 2021.
Procedure
FED. R. BANKR. P. Rule 7054(b)(2)(A) states that FED. R. CIV. P. Rule 54(d)(2)(A)-(C)
and (E) apply in adversary proceedings. Rule 54(d)(2)(B) prescribes a fourteen day time period after the entry of judgment to file a motion to seek attorney fees. Local Rule 7054-1(g)(1) shares this requirement. Here, Defendant filed the motion within the time period on May 26, 2021, as the order dismissing the case was entered on May 12, 2021.
Merits
As Defendant seeks to recover fees incurred litigating a §523 action, CAL. CODE CIV. P.
Rule § 1021 applies and provides:
Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to
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their costs, as hereinafter provided.
"Section 1021 allows the parties to agree that the prevailing party in litigation may recover attorney's fees, whether the litigation sounds in contract or in tort." In re Zarate, 567 B.R. 176, 182 (Bankr. N.D. Cal. 2017) citing to 3250 Wilshire Blvd. Bldg. v. W.R. Grace & Co., 990 F.2d 487, 489 (9th Cir. 1993). "Nothing in Code of Civil Procedure section 1021 limits its application to contract actions." Palmer v.
Shawback, 17 Cal. App. 4th 296, 299 (1st Dist. Ct. App. 1993). Agreement provisions that contain broad language have been held to extend to fees incurred in litigating tort claims. In re Zarate, 567 B.R. 176, 182 (Bankr. N.D. Cal. 2017) (providing examples of language, for e.g., "suits arising from or with respect to the subject matter or enforcement of a contract"). Specifically, "if there is an attorney's fees provision in an agreement between the parties, we look to the language of the agreement to determine whether an award of attorney's fees is warranted in a tort action." In re Davison, 289
B.R. 716, 724 (9th Cir. B.A.P. 2003). The court in In re Crystal Props., Ltd., L.P., provides guidance on reviewing an agreement:
A written contract must be read as a whole and every part interpreted with reference to the whole. Furthermore, a court must give effect to every word or term employed by the parties and reject none as meaningless or surplusage. Therefore, we must interpret the contract in a manner that gives full meaning and effect to all of the contract's provisions and avoid a construction of the contract that focuses only on a single provision.
268 F.3d 743, 748 (9th Cir. 2001) (quotation marks and internal citations omitted). The Operating Agreement, here, contains the following attorney fee provision:
In any dispute between or among the Company and one or more of the Members, including, but not limited to, any Member Dispute, the prevailing party or parties in such dispute shall be entitled to recover from the non-prevailing party or parties all reasonable fees, costs and expenses including, without limitation, attorney’s fees, costs and expenses, all of which shall be deemed to have accrued on the commencement of such action, proceeding or arbitration. Attorney’s fees shall include, without limitation, fees incurred in any post-award or post-judgement motions or proceedings, contempt proceedings, garnishment, levy, and debtor and third party examinations, discovery, and bankruptcy litigation, and prevailing party shall mean the part that is determined in the arbitration, action or proceeding to have prevailed or who prevails by dismissal, default or otherwise.
[Dkt. 93, Pg. 53, Sect. 12.10]. Member dispute, in turn, is defined by Section 11.1 as:
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Disputes Among Members: The Members agree that in the event of any dispute or
disagreement solely between or among any of them arising out of, or relating to or in connection with this Agreement or the Company or its organization, formation, business or management (‘Member Dispute’). . .
Id. at Pg. 50. On its face, the language is broad with respect to any member dispute, and more significantly provides for recovery of fees without limitation with respect to bankruptcy litigation. Plaintiffs, however, point out, that none of them have signed the Operating Agreement, nor have they been given a copy of the agreement until the present litigation. Defendant argues that Plaintiffs statutorily assented to the Operating Agreement pursuant to CAL. CORP. CODE § 17701.11(b) which states that "a person that becomes a member of a limited liability company is deemed to assent to the operating agreement."
Upon review of the Operating Agreement, the Court notes that it was only signed on November 30, 2015 by the founding members: Ramirez, Trezona, and Walker. As evidenced by certificates of membership units, it appears that all the Plaintiffs first became members on August 12, 2015, as of the date of their initial investments. [Dkt. 91, Pgs. 56-59]. Therefore, the Plaintiffs were members of the LLC prior to the execution of the Operating Agreement. The issue is then whether Plaintiffs can be deemed to consent to the terms of the Operating Agreement when they were apparently members before it was executed?
CAL. CORP. CODE § 17701.02(s) states:
(emphasis added). The plain language of the code requires that all members of an LLC sign the Operating Agreement. Reconciling this provision with the language of CAL. CORP. CODE § 17701.11(b), it appears that a person is only bound by an LLC’s Operating Agreement when he "becomes a member" of a company that already has a valid operating agreement.
Given these signature requirements, the Court is not inclined to find the Operating
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Agreement binds Plaintiffs when they should have signed it as then-existing members. Also, that the Operating Agreement lists April 30, 2014 as the effective date does not change the analysis, as the agreement would only be retroactively effective as to the members who signed it. Additionally, although the Operating Agreement lists Exhibit A-2 (Section 2.3) as providing a list of members, no exhibit is attached. Thus, the Court cannot evaluate if the Plaintiffs were included as members by the Operating Agreement. Nor is there a resolution executed by all members allowing only the founding members to sign the Operating Agreement and make it effective as to the Plaintiffs.
Although the Court could not locate any California case dealing precisely with this issue, given its above analysis, the Court is inclined to adopt the position of the New Jersey court in Premier Physician Network, LLC v. Maro, No. A-1152-20, 2021 WL 2124195 (N.J. Super. Ct. App. Div. May 26, 2021), which decided a nearly identical issue. Although Defendant cited this case in her reply as support for the proposition that Plaintiffs are deemed to assent to the Operating Agreement, she overlooked the facts here and misapplied the Maro court’s analysis. There, plaintiffs sought to collect attorney fees based on the terms of an operating agreement drafted in 2015, however, defendants, who became members in 2014, had never signed the agreement, nor had most of them seen the agreement. Id. at *3, 4. Based on N.J.S.A. 42:2C-12(b), which shares the exact same language as CAL. CORP. CODE § 17701.11(b), the trial court held that all members deemed to assent to the operating agreement. See id. at *4. In reviewing the trial court’s decision, the N.J. appellate court looked to NJ’s definition of an operating agreement, which provides: "the agreement, whether or not referred to as an operating agreement and whether oral, in a record, implied, or in any combination thereof, of all the members of a limited liability company. . .," and reasoned:
Applying the actual and complete statutory language, we hold a draft operating agreement does not become the operating agreement of an LLC unless it is "the agreement ... of all the members of" the LLC, meaning "all the members" have to agree to it. If all existing members do not agree to the draft agreement when it is proposed, then the draft operating agreement remains just that – a draft agreement; it never becomes the operating agreement of the LLC. If all members agree to a draft operating agreement, it then becomes the operating agreement of the LLC and any subsequent members are bound by the already-existing operating agreement. If the court's finding that defendants were members of PPN in 2014 is correct and if defendants' assertion that they never agreed to the draft operating agreement, which the trial court found was "drafted and circulated in or about January 2015," is correct,
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then the draft agreement was not the agreement of "all the members" and it never became the operating agreement of PPN.
Id. at *5 (internal citations omitted).
Having considered the statutes at issue here, and noting they are identical in relevant language to the California Corporations Code, the Court concurs with the Maro court’s analysis. On the record before the Court, Plaintiffs appear to have become members of the LLC in August 2015 and the Operating Agreement was executed three months later in November without the Plaintiffs’ signatures; thus the Operating Agreement could not have been an agreement of "all the members." See CAL. CORP. CODE § 17701.02(s). Accordingly, Defendant cannot recover attorney fees pursuant to the operating agreement under CAL. CODE CIV. P. Rule § 1021.
As a separate basis to recover its’ attorney fees, Defendant points to the language in promissory notes given to Plaintiffs in 2018, which states: "If any payment obligation under this Note is not paid when due, the Borrower promises to pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as part of the collection process." [Dkt. 93, Pg. 86, Sect. IV]. Defendant cites to In re Davis, No. 1:10-AP-01354-VK, 2019 WL 2931668, at *5 (B.A.P. 9th Cir. July 3,
2019), aff'd, 809 F. App'x 415 (9th Cir. 2020) for the principle of reciprocal recovery. However, the Davis court applied that principle in the context of allowing a non- signatory of a subcontract to collect attorney fees where he was found to be the alter ego of the signatory. Id. at *7. The bankruptcy court held:
API explicitly contracted for reciprocity as to liability for attorneys' fees. Had [API] prevailed on its nondischargeability claim, because of the Alter Ego Judgment, [API] would have been able to collect its award of attorneys' fees from [Mr. Davis]. In fact, in the Adversary Complaint, [API] requested an award of attorneys' fees; for a nondischargeability claim under § 523(a)(2)(A), [API's] bases to obtain an award of attorneys' fees are the Agreement's attorneys' fees provision and the Alter Ego Judgment. Based on the authorities above, as a prevailing party, [Mr. Davis] may receive an award of attorneys' fees under the Agreement.
Id. at *4 (emphasis added). In that case, the attorney fee provision provided that both parties would be responsible for fees: "Subcontractor agrees to pay Contractor reasonable attorneys' fees. In the event that Subcontractor prevails ..., Contractor agrees to pay Subcontractor reasonable attorneys' fees." Id. at *1. The BAP affirmed
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and held that because the plaintiff had enforced the fee provision against the non- signatory in a state court action, now the non-signatory had the reciprocal right to enforce the provision against the plaintiff whether under CAL. CODE CIV. P. Rule § 1717 or § 1021. Id. at *8.
Defendant, here, in its motion, did not draw any clear connections between this principle and the promissory notes. In her reply, Defendant explains that even though she is a nonsignatory to the notes, the reciprocity principle should apply, since Plaintiffs have sued her in state court for claims related to the notes. However, this does not change the fact that the provision in the notes read only that "the Borrower" (who is the Defendant) will "pay all the costs of collection," in contrast to the provision in Davis, which explicitly provided for reciprocity. Additionally, Davis did not analyze the issue of whether the language of the fee provision could be applied to fees incurred in tort litigation. Even if the Court was to infer that the fee obligation language had some reciprocal effect, it would be an inappropriate application of CAL. CODE CIV. P. Rule § 1021. Only fee provisions that contain broad language have been held to extend to tort litigation under § 1021. See In re Zarate, 567 B.R. 176, 182 (Bankr. N.D. Cal. 2017). The attorney fee provision here that limits recovery to costs of collection is not broad enough to cover a suit under §523(a)(2)(A). See id. at 183 ("In short, provisions such as § 12.9—by its terms limited to enforcement of the terms or collection of what is owed—have been held not to extend to fees incurred in litigating tort claims."). Accordingly, the promissory notes do not provide a sufficient basis for Defendant to recover her attorney fees from Plaintiffs.
For the foregoing reasons, the Court is inclined to DENY the motion.
APPEARANCES REQUIRED.
Debtor(s):
Corinne Lara Ramirez Represented By Natalie A Alvarado
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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
Trustee(s):
Steven M Speier (TR) Pro Se
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Adv#: 6:20-01103 Pavon-Arita v. Noble et al
From: 7/22/20,1/13/21, 3/17/21 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
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Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:20-01112 Cruz v. Cruz
Complaint by Patricia Marlen Cruz against Ronald V. Cruz. 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)),(64 (Dischargeability - 523(a)(15), divorce/sep property settlement/decree)),(91 (Declaratory judgment)) filed by Plaintiff Patricia Marlen Cruz). (Brownstein, William)
From: 8/19/20,2/17/21 EH
(Tele. appr. William Brownstein, rep. Patricia M. Cruz, Plaintiff) (Tele. appr. Walter Scott, rep. Ronald Cruz, Defendant)
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
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Trustee(s):
William H Brownstein
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
From: 4/7/21,4/21/21, 5/26/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Pro Se
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
Carmela Pagay
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Trustee(s):
Lynda T. Bui (TR) Represented By Todd A Frealy
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Adv#: 6:21-01045 Montejano v. Rios, Jr.
EH
Docket 1
- NONE LISTED -
Debtor(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Defendant(s):
Rodolfo Rios Jr. Pro Se
Plaintiff(s):
Armando Montejano Represented By Garrick A Hollander
Trustee(s):
Todd A. Frealy (TR) Pro Se
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From: 5/27/21 EH
Docket 84
- NONE LISTED -
Debtor(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Joint Debtor(s):
Jeneke Nicole Blanco Represented By Norma Duenas
Movant(s):
Gabriel Agustin Blanco Represented By Norma Duenas
Jeneke Nicole Blanco Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
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(Placed on calendar by order entered 5/13/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jason Meyer, rep. Financial Credit Union)
Docket 69
- NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
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EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor, Tony Garcia)
Docket 71
Service: Proper Opposition: None
On October 9, 2019, Tony Andy Garcia II ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s Chapter 13 plan was confirmed on January 9, 2020.
On October 15, 2019, LVNV Funding, LLC ("Claimant") filed a proof of claim in the amount of $8,378.76 ("Claim 1"). On May 12, 2021, 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 November 17, 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
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("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:
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
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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 11 is barred by the four-year statute of limitations, as the last payment was made over 10 years ago. Therefore, the Court is inclined to find that Debtor has met his 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):
Tony Andy Garcia II Represented By Sundee M Teeple
Movant(s):
Tony Andy Garcia II Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor, Tony Garcia)
Docket 72
Service: Proper Opposition: None
On October 9, 2019, Tony Andy Garcia II ("Debtor") filed a Chapter 13 voluntary petition. Debtor’s Chapter 13 plan was confirmed on January 9, 2020.
On December 12, 2019, LVNV Funding, LLC ("Claimant") filed a proof of claim in the amount of $1,164.56 ("Claim 15"). On May 12, 2021, Debtor filed this instant motion objecting to Claim 15. Debtor argues that under California law, C.C.P. § 337, Claim 15 is barred by the statute of limitations, as the last payment on the credit card was made on June 09, 1997, 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
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("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:
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
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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 15 is barred by the four-year statute of limitations, as the last payment was made over 20 years ago. Therefore, the Court is inclined to find that Debtor has met his 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 15.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Tony Andy Garcia II Represented By Sundee M Teeple
Movant(s):
Tony Andy Garcia II Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/27/21 Also #6
(Placed on calendar by order entered 5/19/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Chris Mullen, rep. Debtor)
Docket 52
- NONE LISTED -
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
Also #5 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Chris Mullen, rep. Debtor)
Docket 49
- NONE LISTED -
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 34
- 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
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jenny Doling, rep. Debtor, Felipe Garcia)
(Tele. appr. Barry Glaser, rep. County of San Bernardino, secured creditor)
Docket 25
Service: Proper Opposition: Creditor
On March 19, 2021, Felipe Fierro Garcia ("Debtor") filed a Chapter 13 bankruptcy petition in the Bankruptcy Court for the Central District of California, case No. 6:21- bk-11433-MH. The Debtor’s Chapter 13 Plan was approved on June 15, 2021.
On April 19, 2021, Claim Number 1 was filed by the County of San Bernardino ("Creditor"), setting forth an alleged claim of $2,384.03 for the 2021 projected real property taxes associated with Parcel Number 1009-362-05-0000 (the "Property").
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On May 24, 2021, Debtor filed a Motion for Order Disallowing Claim Number 1. In his objection, Debtor only states that:
Debtor does not owe the County of San Bernardino any property taxes.
the County of San Bernardino cannot collect any future projected property taxes, let alone an 18% interest rate on debt that has not become due.
On June 9, 2021, Creditor filed an 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.
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.
As is required by LBR 3007-1, "an objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified."
Because Creditor properly filed a proof of claim, the burden shifted to Debtor to "present evidence to overcome the prima facie case." See In re Medina, 205 B.R. 216, 222 (9th Cir. B.A.P. 1996). "The interposition of an objection does not deprive the proof of claim of presumptive validity unless the objection is supported by substantial evidence." In Re Hemingway Transport, Inc., 993 F.2d 915, 925 (1st Cir. 1993).
Debtor’s motion does not provide sufficient evidence to defeat Creditor’s claim. Debtor makes only two objections, both lacking any evidentiary support. Debtor’s bald statements that he "doesn’t owe the County of San Bernardino any property
11:00 AM
taxes," and that the County of San Bernardino cannot collect any future projected taxes, let alone an 18% rate on debt that has not become due," do not rise to the level required to negate Creditor’s prima facie case. On this basis alone, the Court is inclined to deny Debtor’s motion.
Notwithstanding the evidentiary problems, it appears that Debtor is mistaken about the obligation to pay California property taxes. As explained by the Creditor, the property tax obligation "fixes on the lien date of January 1 preceding the fiscal year for which the taxes are due." See CAL. REV. & TAX. CODE § 2192. Therefore, Debtor’s lien date for the Property for the 2021 tax year was January 1, 2021, which arose prior to Debtor’s Chapter 13 Petition. Thus, it appears the Debtor is obligated to pay the 2021 taxes on the Property in the amount of $2,384.03.
The Court is inclined to DENY Debtor’s motion for an order disallowing claim.
APPEARANCES REQUIRED.
Debtor(s):
Felipe Fierro Garcia Represented By Jenny L Doling
Movant(s):
Felipe Fierro Garcia Represented By Jenny L Doling
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Jayzelle Davon White 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. Bryan Fairman, rep. Wells Fargo Bank) (Tele. appr. Michael Gouveia, rep. Debtor)
Docket 0
- NONE LISTED -
Debtor(s):
Leo F. Bly Represented By
Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
Docket 19
- NONE LISTED -
Debtor(s):
Mary S Reeves Represented By Jackie R Geller
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Michael Lewis Bullock Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Michael Gouveia, rep. Debtors)
(Tele. appr. Austin Nagel, rep. Toyota Motor Credit Corporation)
Docket 0
- NONE LISTED -
Debtor(s):
Guido Mendoza Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Maria Osorio Represented By
Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Robin Givan Represented By
Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Polina Manyika Represented By Joel M Feinstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Nancy Clark 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. Natalie Alvarado, rep. Debtor)
Docket 0
- NONE LISTED -
Debtor(s):
Glory Akhere-Okokhere Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Paul Lee, rep. Debtors)
Docket 178
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Donna Travis, rep. Debtor, Patricial Morales)
Docket 128
- NONE LISTED -
Debtor(s):
Patricia Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Donna Travis, rep. Debtor, Gwendolyn Saunders)
Docket 96
- NONE LISTED -
Debtor(s):
Gwendolyn Priscilla Saunders Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 83
- NONE LISTED -
Debtor(s):
Lamar Ramon Benjamin Represented By
Ethan Kiwhan Chin
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 108
- 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. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Andy Nguyen, rep. Debtor)
Docket 57
- NONE LISTED -
Debtor(s):
Charles Edmund Brownell Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 28
- NONE LISTED -
Debtor(s):
Louis Anthony Coffin Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE
EH
(Tele. appr. Sheryl Ith, rep, creditor, TD Auto Finance)
Docket 40
The Court having reviewed the motion, and no opposition having been filed, finds cause exists where Debtor has missed three car payments. Accordingly, 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 ¶ 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.
11:00 AM
Debtor(s):
Roberto Rolon Rodriguez Represented By James G. Beirne
Joint Debtor(s):
Maria Rolon Represented By
James G. Beirne
Movant(s):
TD Auto Finance LLC Represented By Jennifer H Wang Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC
EH
Docket 71
- NONE LISTED -
Debtor(s):
Kevin Eugene Martin Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Francisca Chavez-Martin Represented By Michael E Clark Barry E Borowitz
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Case Dismissed 6/28/21)
MOVANT: JPMORGAN CHASE BANK
EH
(Tele. appr. Joseph Delmotte, rep. creditor, JPMorgan Chase Bank)
Docket 62
- NONE LISTED -
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NATIONS DIRECT MORTGAGE, LLC
EH
(Tele. appr. Daniel Fujimoto, rep. creditor, Nations Direct Mortgage LLC)
Docket 79
The Court notes there is an order entered on May 5, 2021 ("Order") granting relief from stay to the same Movant as to the property located at 13692 Bedford Place, Victorville, CA 92392 that is the subject of this motion. The Court notes that the Order does not grant relief from the co-debtor stay, whereas this motion is seeking such relief. However, there is no declaration or explanation referencing the Order. Moreover, the motion is blank on page 9 of the form declaration as to evidence of any missed post-petition payments. Movant to clarify.
APPEARANCES REQUIRED.
Debtor(s):
Elida Soto Represented By
William G Cort
11:00 AM
Movant(s):
NATIONS DIRECT MORTGAGE, Represented By
Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 4/20/21,5/25/21 EH
(Tele. appr. Dane Exnowski, rep. creditor, Freedom Mortgage Corporation)
(Tele. appr. John Asuncion, specially appearing for Suzette Douglas, rep. Debtor, Jerold Hoxie)
Docket 34
- NONE LISTED -
Debtor(s):
Jerold Ray Hoxie Represented By Suzette Douglas
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski Ciro Mestres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/25/21
MOVANT: DAVID Y. CHEN, HSUCH HUNG CHANG
EH
(Tele. appr. James Zhou, rep. Debtor, Qun Wang)
Docket 37
The Court notes that Movant asserts that it "acquired title to the Property by foreclosure sale before the bankruptcy petition was filed and recorded the deed within the period provided by state law for perfection." The Court further notes that CAL. CIV. Code
§ 2924(h)(c) provides that the date of perfection relates back to the date of the sale if the deed of sale is recorded within fifteen days of the sale. Here, however, Movant waited forty-eight days to record the deed of sale, recording the deed after the instant petition was filed. As such, it would appear that Movant recorded its deed in violation of the automatic stay, and, therefore, the foreclosure sale appears to not be valid. See generally In re Svacina, 618 B.R 852 (Bankr. C.D. Cal. 2020) (discussing § 2924(h)(c)); see also Burton v. Infinity Capital Mgmt., 862 F.3d 740 (9th Cir. 2017) (actions taken in violation of the automatic stay are void.).
APPEARANCES REQUIRED.
11:00 AM
Debtor(s):
Qun Wang Represented By
Jianmin Zhou
Movant(s):
David/ Hsuch Chen/ Chang Represented By Barry L O'Connor
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
MOVANT: DAIMLER TRUST
EH
(Tele. appr. Sheryl Ith, rep. creditor, Daimler Trust)
Docket 25
For the reasons stated 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):
Edward Andrew Galura Represented By Kevin M Mahan
Joint Debtor(s):
Yuset Ramirez Galura Represented By
11:00 AM
Movant(s):
Kevin M Mahan
Daimler Trust Represented By
Sheryl K Ith
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, TD Auto Finance LLC)
Docket 7
For the reasons stated 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):
Juan Hernandez Represented By Jaime A Cuevas Jr.
11:00 AM
Joint Debtor(s):
Herminia L. Hernandez Represented By Jaime A Cuevas Jr.
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Requiring Status Report
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, 11/17/20, 3/30/21
EH
(Tele. appr. David Goodrich, rep. Adam Meislik, ,trustee of the Liquidating Trust of Visiting Nurse Association of the Inland Counties
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
(Holding Date)
From: 9/29/20, 11/24/20,12/1/20, 3/30/21,6/8/21
EH
Docket 8
- NONE LISTED -
Debtor(s):
Fasttrak Foods, LLC Pro Se
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Also #11-17 EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 158
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
United States Trustee (RS) Represented By Everett L Green
Abram Feuerstein esq Cameron C Ridley
2:00 PM
EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 149
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 132
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 2
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 134
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 136
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
From: 5/25/21,6/8/21 EH
(Tele. appr. Cameron Ridley, rep. United States Trustee)
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 102
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By
2:00 PM
Steven R Fox Steven R Fox
2:00 PM
From: 3/16/21, 3/30/21,5/25/21 EH
(Tele. appr. Elan Levey appearing on behalf of the United States of America)
(Tele. appr. Steven Fox, rep. Debtor, DW Trim, Inc.) (Tele. appr. Chris De Mint, principle of the Debtor)
Docket 15
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
11:00 AM
(Placed on calendar by order entered 6/10/21) EH
Docket 41
- NONE LISTED -
Debtor(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Movant(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
Docket 40
- NONE LISTED -
Debtor(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Movant(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
EH
Docket 38
- NONE LISTED -
Debtor(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Movant(s):
Dominic Michael Spallino Represented By Kenneth D Sisco Melissa A Raskey
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
(Status Conference)
Also #6,7 From: 4/21/21 EH
(Tele. appr. Douglas Plazak, rep. Robert Whitmore, chapter 7 trustee)
Docket 96
- 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
11:00 AM
Adv#: 6:19-01144 Whitmore v. Hammond
HOLDING DATE
From: 12/18/19, 5/20/20, 9/9/20, 11/4/20, 12/2/20,1/6/21,2/3/21
EH
(Tele. appr. Douglas Plazak, rep. Robert Whitmore, chapter 7 trustee)
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
11:00 AM
11:00 AM
HOLDING DATE
Also #4,7
From: 12/18/19, 5/20/20, 9/9/20,11/4/20,12/2/20,1/6/21,2/3/21,5/5/21
EH
(Tele. appr. Douglas Plazak, rep. Robert Whitmore, chapter 7 trustee)
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.
11:00 AM
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 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
11:00 AM
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:
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
11:00 AM
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." 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.
11:00 AM
Id. at 149.
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.
11:00 AM
In re Davis, 323 B.R. 732, 741 (B.A.P. 9th Cir. 2005) (Judge Klein, concurring opinion).
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.").
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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 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:
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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.").
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
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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.
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.
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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 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
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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 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
HOLDING DATE
Also #6
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20,11/4/20, 2/2/20,1/6/21,2/3/21
EH
(Tele. appr. Douglas Plazak, rep. Robert Whitmore, chapter 7 trustee)
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.
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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 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
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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, 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.
11:00 AM
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
11:00 AM
Docket 13
- NONE LISTED -
Debtor(s):
Cynthia Lynne Levy Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
EH
Docket 15
- NONE LISTED -
Debtor(s):
Victoria Leangela Hare Pro Se
Trustee(s):
Rod Danielson (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, 5/3/17,4/28/21 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,
11/25/20,12/2/20,2/17/21,4/28/21
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
2:00 PM
BLACK AND WHITE INK Pro Se
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, 11/25/20,12/2/20,2/17/21,4/28/21
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
2:00 PM
Misty A Perry Isaacson
LIBERTY ORTHOPEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
UNIVERSAL ORTHOPAEDIC Represented By
Misty Perry Isaacson Misty A Perry Isaacson
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,
2/12/20,2/17/21
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
2:00 PM
Trustee(s):
Helen R. Frazer (TR) Represented By Arjun Sivakumar Carmela Pagay
Franklin R Fraley Jr Cathrine M Castaldi
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, 11/25/20,12/2/20,2/17/21,4/28/21
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 Cathrine M Castaldi
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,
11/25/20,12/2/20,2/17/21
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 Cathrine M Castaldi
2:00 PM
Adv#: 6:18-01106 Bankers Healthcare Group, LLC v. Johnson
HOLDING DATE
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, 10/14/20,12/2/20, 3/31/21
EH
(Tele. appr. Dustin Nirschl, rep. Plaintiff, Bankers Healtcare Group, LLC)
Docket 1
4/15/20
TENTATIVE RULING
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#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
status conference Also #17
From: 2/3/21 EH
(Tele. appr. Daren Schlecter, rep. Plaintiff)
(Tele. appr. Dustin Nirschl, rep. Defendant, Marc Capoccia)
Docket 32
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
From: 3/25/20, 4/1/20,12/2/20,2/3/21 Also #16
EH
(Tele. appr. Daren Schlecter, rep. Plaintiff)
(Tele. appr. Dustin Nirschl, rep. Defendant, Marc Capoccia)
Docket 1
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer
2:00 PM
Trustee(s):
Daren M Schlecter
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
(As to Sanctions) HOLDING DATE
EH
Docket 50
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Movant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
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, 12/2/20, 3/3/21 EH
(Tele. appr. John Dickman, rep. Plaintiff, Greg Thompson)
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#: 6:20-01106 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, 10/28/20,12/23/20, 2/17/21,4/28/21
EH
(Tele. appr. Scott Talkov, rep. Defendant, Satoko DeGracia)
Docket 1
- NONE LISTED -
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Defendant(s):
Satoko DeGracia Represented By Scott Talkov
2:00 PM
Plaintiff(s):
Charles W. Daff Represented By Brandon J Iskander
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
2:00 PM
Adv#: 6:20-01192 Price v. Salem et al
From: 2/3/21,4/28/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Amjad Yousef Salem Represented By Brian J Soo-Hoo
Defendant(s):
Amjad Yousef Salem Pro Se
Lina Amjad Salem Pro Se
Joint Debtor(s):
Lina Amjad Salem Represented By Brian J Soo-Hoo
Plaintiff(s):
David Price Represented By
David Weil
2:00 PM
Trustee(s):
Steven M Speier (TR) Pro Se
2:00 PM
Adv#: 6:20-01185 Anderson v. Oceana Gwen, LLC et al
From: 3/31/21 EH
(Tele. appr. Tinho Mang, rep. Debtor, Maria Hernandez)
Docket 1
- NONE LISTED -
Debtor(s):
Maria Elvia Hernandez Represented By Christopher J Langley
Defendant(s):
Oceana Gwen, LLC Pro Se
EMMANUEL ANDRADE Pro Se
Plaintiff(s):
Karl T. Anderson Represented By Tinho Mang
2:00 PM
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Erin Maloney, rep. creditor, Rosetta Canyon Community Association)
(Tele. appr. Danny Agai, rep. Debtor, Francisco Almeda)
Docket 31
On December 28, 2019, Francisco Almeda Jr. ("Debtor") filed a Chapter 13 voluntary petition. On April 3, 2020, Debtor’s Chapter 13 plan was confirmed.
On January 29, 2020, Rosetta Canyon Community Association ("Creditor") filed a proof of claim for a secured claim in the amount of $20,259.07 ("Claim 4"). On April 1, 2021, Creditor amended Claim 4, increasing the amount to $23,140.66.
On June 2, 2021, Debtor filed an objection to Claim 4, asserting that the attorney fees which were included in the amended claim are excessive and should be disallowed.
On June 14, 2021, Creditor filed an opposition to Debtor’s claim objection
11:00 AM
The Court notes that notice of the hearing is improper pursuant to FED. R. BANK. P.
Rule 3007(a)(1).
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.
Debtor asserts that Creditor has not provided sufficient evidence to establish the reasonableness of that portion of Claim 4 which is based on attorney fees. As noted by Debtor, FED. R. BANKR. P. Rule 3002.1(c) requests Creditor to provide an itemized list of post-petition fees (and FED. R. BANKR. P. Rule 3001(c)(2)(A) requires itemization of pre-petition fees). Claim 4 did not contain an itemized list of fees.
The Court notes that Creditor’s opposition largely contains boilerplate language that does not directly respond to the issue of the documentation and reasonableness of the added fees. The Court also notes that the unpublished case that Creditor asserts supports its position, In re Serrato, 6:15-bk-18945-MJ, was not actually attached to Creditor’s opposition.
The Court has reviewed the itemized fee statement attached to the opposition as well as the original and amended Claim 4, and notes the following issues:
-The amendment of Claim 4 added $2,881.59. Paragraph 5 of the declaration of Erin Maloney states this amendment was only for $1,881.59, that the itemization provided identifies fees in the amount of $2,621.50, and that amounts above $1,881.59 were included in the original proof of claim. On this basis alone, it would appear that the amended proof of claim contains a typo/miscalculation and should be reduced by
$1,000.
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-The itemized fee statement contains numerous entries that would appear to be administrative and/or unnecessary (e.g. monthly status reports to client). It would appear that none of the services provided between the confirmation of the Chapter 13 plan and the preparation of an amended claim would constitute legal services.
-The Court also notes that: (a) notice of the hearing on this claim objection is improper as it was not served thirty-days before the scheduled hearing (it was served on June 2, 2021), as required by FED. R. BANKR. P. Rule 3007(a)(1); and (b) the attachment of itemized fees to Creditor’s opposition does not remedy the deficiency in Claim 4 as reflected in the Claims Register.
APPEARANCES REQUIRED.
Debtor(s):
Francisco Almeda Jr. Represented By Danny K Agai
Movant(s):
Francisco Almeda Jr. Represented By Danny K Agai
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Samuel Dominguez Uribe Jr. Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Nancy Lee, rep. creditor, Lakeview Loan Servicing, LLC)
Docket 0
- 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. Carey Pickford, rep. Debtors, Paul and Jamie Fitch)
Docket 0
- NONE LISTED -
Debtor(s):
Paul Brian Fitch Represented By Carey C Pickford
Joint Debtor(s):
Jamie Christine Fitch Represented By Carey C Pickford
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Sandra Clements-Owens Represented By Kevin Cortright
Joint Debtor(s):
James Owens Represented By Kevin Cortright
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Erin McCartney, rep. Debtors, Andrew Bowen and Carmen Bowen)
Docket 0
- NONE LISTED -
Debtor(s):
Andrew James Bowen Represented By Norma Duenas
Joint Debtor(s):
Carmen Bowen Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Erin McCartney, rep. creditor, Carrington Mortgage Services, LLC)
(Tele. appr. Michael Smith, rep. Debtor, Lourdes Vargas)
Docket 0
- NONE LISTED -
Debtor(s):
Lourdes P. Vargas Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Michael Anthony Chavez Jr. Represented By Heather J Canning
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Declaration filed Withdrawing Objection to Discharge)
From: 5/27/21,6/10/21,6/24/21
(Placed on calendar by order entered 5/13/21) EH
Docket 69
- NONE LISTED -
Debtor(s):
Thomas More Butler Represented By
Stuart G Steingraber
Joint Debtor(s):
Tamara Butler Represented By
Stuart G Steingraber
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 49
- NONE LISTED -
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 142
- 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 71
- NONE LISTED -
Debtor(s):
Liliana Martinez Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Michael Smith, rep. Debtors, Joe & Yolanda Brown)
Docket 116
- 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 130
- NONE LISTED -
Debtor(s):
Johnny Alcala Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 49
- NONE LISTED -
Debtor(s):
Armando Hermosillo Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Marta Samhouri Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Rebecca Tomilowitz, rep. Debtor, Eusebia Rios)
Docket 54
- NONE LISTED -
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 83
- 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. Joey De Leon, rep. Chapter 13 Trustee)
Docket 73
- NONE LISTED -
Debtor(s):
Joe A Pickens II Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Joanne Andrew, specially appearing for Debtor, Nicholas Wajda)
Docket 79
- 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 90
- NONE LISTED -
Debtor(s):
Debra Suzanne Towne Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Joanne Andrew, rep. Debtor, Jamar Earnest)
Docket 46
- NONE LISTED -
Debtor(s):
Jamar A Earnest Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 44
- 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
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 56
- NONE LISTED -
Debtor(s):
Nicholas Head Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 128
- NONE LISTED -
Debtor(s):
Patricia Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK, N.A.
EH
(Tele. appr. Jenelle Arnold, rep. creditor, Wells Fargo Bank)
Docket 53
Service: Proper Opposition: None
The Court is inclined to:
-GRANT requests for relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT relief from § 1301(a) co-debtor stay
-WAIVE the Rule 4001(a)(3) stay
-GRANT request under ¶12.
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Armando Hermosillo Represented By Neil R Hedtke
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
11:00 AM
Trustee(s):
Joseph C Delmotte
Rod Danielson (TR) Pro Se
11:00 AM
From: 3/2/21,5/4/21,6/8/21
MOVANT: NATIONSTAR MORTGAGE
EH
Docket 84
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 alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Rodolfo Aguiar Pro Se
Joint Debtor(s):
Irma D Aguiar Pro Se
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Dane W Exnowski Arnold L Graff Nancy L Lee Jennifer C Wong
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK, SUCCESSOR TO BANK OF AMERICA
EH
Docket 43
- NONE LISTED -
Debtor(s):
Noemi Meraz Espinoza Represented By
Ramiro Flores Munoz
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Robert P Zahradka
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING
EH
(Tele. appr. Darlene Vigil, rep. creditor, NEWREZ LLC)
Docket 57
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;
-WAIVE Rule 4001(a)(3) stay;
-GRANT requests under ¶¶ 2 and 3;
-DENY alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Fermisa Ong Yang Represented By
11:00 AM
Movant(s):
Ivan Trahan
NewRez LLC d/b/a Shellpoint Represented By Julian T Cotton Ciro Mestres Darlene C Vigil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AJAX MORTGAGE LOAN TRUST 2019-E, MORTGAGE BACK SECURITIES, SERIES 2910-E BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
From: 2/16/21,4/27/21,5/25/21 EH
(Tele. appr. Donna Travis, rep. Debtor, Portia Barmes)
(Tele. appr. Reilly Wilkinson, rep. creditor, AJAX Mortgage Loan Trust 2019-E)
Docket 78
- NONE LISTED -
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Movant(s):
Ajax Mortgage Loan Trust 2019-E, Represented By
Reilly D Wilkinson Joshua L Scheer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21,5/25/21 MOVANT: NEWREZ LLC
EH
(Tele. appr. Kristin Zilberstein, rep. creditor NewRez LLC)
Docket 59
Given the evidence submitted by Debtors that Movant granted Debtors a COVID-19 related forbearance for the payments in question, the Court is inclined to DENY the motion for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber
11:00 AM
Movant(s):
Fritz J Firman
NewRez LLC d/b/a Shellpoint Represented By Eric P Enciso
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PENNYMAC LOAN SERVICES, LLC.
EH
(Tele. appr. Christina Khil, rep. Debtor, Douglas Crayton)
Docket 30
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Douglas E Crayton Represented By Paul Y Lee
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/1/21
MOVANT: FREEDOM MORTGAGE CORPORATION
EH
Docket 44
- NONE LISTED -
Debtor(s):
Christopher Bryan Dennis Represented By
M. Wayne Tucker
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski Dana OBrien
Ciro Mestres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/27/21,6/8/21
MOVANT: WELLS FARGO BANK, NATIONAL ASSOCIATION
EH
Docket 55
- NONE LISTED -
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Movant(s):
Wells Fargo Bank Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/8/21
MOVANT: CAM XI TRUST
EH
(Tele. appr. Reilly Wilkinson, rep. creditor, Cam XI Trust)
Docket 24
Service appears proper. No opposition.
BACKGROUND
Movant is the beneficiary of a recorded Deed of Trust on the Property in question. In February 2021, Movant was informed of the unauthorized transfer of the Property dated to March 12, 2020 to a party in a separate bankruptcy (case number 2:21-
bk-11377-WB). This transfer was allegedly executed by the original borrower, Onie Devaughn-James, who died in September 17, 2017. In the prior bankruptcy case, Movant filed a motion for relief from the prior automatic stay, requesting in rem relief, which was granted on March 19, 2021. Movant did not record the in rem order until March 22, 2021, shortly after the foreclosure sale of the Property.
On March 22, 2021, just before the foreclosure sale of the Property occurred and prior to the recording of the in rem order, Movant was informed of another unauthorized transfer of the Property on October 16, 2020, again by the deceased original borrower.
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The Debtor is not the borrower on the Property and did not list the Property in his schedules.
Although Movant knew the bankruptcy case had been filed, Movant proceeded with the foreclosure sale on March 22, 2021 and the property reverted to the Lender.
Because the Debtor’s petition for Chapter 13 Bankruptcy was filed before the foreclosure sale, the stay was in place and the foreclosure sale was void.
Movant now seeks an annulment of the stay to validate the March 22, 2021 foreclosure sale and a waiver of the 14 day stay prescribed by FRBP 4001(a)(3). If an annulment is not granted, the Movant requests relief pursuant to 11 U.S.C. § 362(d) (1), (4) and 11 U.S.C. § 1301(a) for relief from the new stay on the Property.
Movant argues that a retroactive annulment of the stay is justified due to the original borrower’s repeated bad-faith and unauthorized transfers of the Property.
DISCUSSION
1. Movant’s Request for Retroactive Annulment of Stay
11 U.S.C. § 362(d)(1) sets forth the grounds for relief from stay. It provides that:
". . . 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—
or cause, including the lack of adequate protection of an interest in property of such party in interest."
A bankruptcy court’s authority to make exceptions to a stay "includes annulment providing retroactive relief, which, if granted, moots any issue as to whether the violating sale was void." In re Fjeldsted, 293 B.R. 12, 21 (B.A.P. 9th Cir. 2003). The
B.A.P. in Fjeldsted set out the following twelve factors in determining whether a court should annul the automatic stay retroactively:
Number of filings;
Whether, in a repeat filing case, the circumstances indicate an intention to delay and hinder creditors;
11:00 AM
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;
The Debtor's overall good faith (totality of circumstances test);
Whether creditors knew of stay but nonetheless took action, thus compounding the problem;
Whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules;
The relative ease of restoring parties to the status quo ante;
The costs of annulment to debtors and creditors;
How quickly creditors moved for annulment, or how quickly debtors moved to set aside the sale or violative conduct;
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;
Whether annulment of the stay will cause irreparable injury to the debtor;
Whether stay relief will promote judicial economy or other efficiencies."
Id. At 25 (citations omitted).
Id.
Fjeldsted cautioned that these factors are "merely a framework for analysis and not a scorecard," but that any one factor "may so outweigh the others as to be dispositive." Id. at 32.
Here, the major issue involves factor #5. Movant knew that Debtor had filed for bankruptcy and that the Property had been transferred to the Debtor. Movant’s in rem order had no effect, as it was not recorded at the time of the sale. Nevertheless, the Movant proceeded with the foreclosure sale despite the stay being in place. This shows a lack of good faith on the part of the Movant and an action that compounded the problem. Further, under factor #9, this issue arose due to Movant not swiftly recording its in rem order before the foreclosure sale.
Movant’s actions, in fact, constituted a "willful" violation of the automatic stay. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (a stay violation is "willful" if the party knew of the stay); Ramirez v. Fuselier (In re
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Ramirez), 183 B.R. 583, 589 (9th Cir. B.A.P. 1995) (knowledge of the bankruptcy filing is legal equivalent of knowledge of the automatic stay).
However, as the Ninth Circuit ruled in both In re Glaser, 1995 U.S. App. LEXIS 12268 (1995), a willful violation of a stay does not prevent a court from retroactively validating a foreclosure sale. In Glaser, the Ninth Circuit explained that:
Section 362(d) permits the court, in annulling a stay, to validate retroactively actions taken by a party that would otherwise be in violation of the
stay. (citing to In re Schwartz, 954 F.2d 569, 573 (9th Cir. Ct. App. 1992) ("section 362(d) gives the [bankruptcy] court the power to ratify
retroactively any violation of the automatic stay which would otherwise be void."). This power exists whether the creditor acts at a time when he is unaware of the stay, 2 Collier on Bankruptcy P362.07 (1994), or proceeds with a foreclosure sale when he has actual knowledge of the stay. (citing to Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1422-25 (9th Cir. 1985)).
Glaser, 1995 U.S. App. LEXIS 12268.
Similar to the present facts, in Glaser, the debtor provided evidence that the creditor proceeded with a foreclosure sale despite knowledge of the bankruptcy filing. Id.
However, the Ninth Circuit ruled that "bankruptcy court[s] can validate the foreclosure sale regardless of [creditor’s] knowledge of [debtor’s] April 14 petition." Id. More recently, the panel in In re Oya, 2019 Bankr. LEXIS 3303, 14 (9th Cir.
B.A.P. 2019) reaffirmed that "the creditor’s knowledge is just one factor to consider in weighing the equities of the case."
While Movant’s knowledge of the bankruptcy filing goes against it, in sum, the "balancing of equities" tips toward granting the Movant an annulment to validate the foreclosure sale. Under Fjeldsted factors #1 and #2, the original borrower’s repeated unauthorized transfers within a month indicate a clear intention and scheme to delay and hinder the Movant. The scheme at hand is also clearly done in bad faith as the alleged executor of the unauthorized transfers has been deceased since 2017. Further, under #11, it appears that the Debtor will not be adversely affected in any way, as the Property was not in the Debtor’s schedules. Per #7, granting an annulment would also allow parties to return to the status quo ante relatively easily, as Debtor would be able to continue unperturbed with his bankruptcy proceeding and Movant could
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validate the already completed foreclosure sale. Lastly, under #3 and #12, if the stay is not annulled, Movant likely would have to unwind the sale and would provide the people behind the scheme with more opportunities to repeat their fraudulent activities, leading to more bankruptcy proceedings.
However, the Court is concerned that the evidence in support of Movant’s knowledge of the bankruptcy filing and decision to foreclose is vague as to who made the decision, who believed the unrecorded in rem order was effective, and the timing of the notice and decision.
APPEARANCES REQUIRED.
Debtor(s):
Amparo De Leon Represented By Julie J Villalobos
Movant(s):
CAM XI TRUST, its successors Represented By Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Exeter Finance LLC)
Docket 10
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-WAIVE 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):
Dayanara Garcia Represented By Freddie V Vega
Movant(s):
Exeter Finance LLC f/k/a Exeter Represented By
Sheryl K Ith
11:00 AM
Trustee(s):
Howard B Grobstein (TR) Pro Se
2:00 PM
Also #13
From: 5/25/21,6/22/21
MOVANT: BARSTOW DALUVOY FIRST MORTGAGE INVESTORS, LP
EH
(Tele. appr. William Beall, rep. creditor, Barstow Daluvoy First Mortgage Investors, LP)
(Tele. appr. Ali Matin, rep. United States Trustee)
Docket 66
Raman Enterprises, LLC ("Debtor") filed a Chapter 11 voluntary petition on December 8, 2020. Debtor’s only material assets are two parcels of real property, one in Barstow (zoned commercial) (the "Barstow Property") and one in Riverside (zoned residential) (the "Riverside Property"). Schedule A valued these real estate parcels at
$1.95 million each. On Schedule D. Debtor listed three liens against each parcel. The Barstow Property was identified as encumbered by a voluntary lien in the amount of
$761,099 and a tax lien in the amount of $17,631.66. The Riverside Property was encumbered by a voluntary lien in the amount of $525,000 and a tax lien in the amount of $96,049.76. Both properties were encumbered by a cross-collateralized lien of an unknown amount, although Proof of Claim Number 4 identifies the amount
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of the cross-collateralized lien as $565,098.40.
On January 11, 2021, the Court entered a scheduling order that provided for a deadline to file a Chapter 11 plan and disclosure statement of July 15, 2021. Debtor subsequently employed counsel and a real estate broker to market the two properties.
On April 20, 2021, Barstow Daluvoy First Mortgage Investors, LP ("Movant"), the holder of the voluntary lien against the Barstow Property, filed a motion for relief from the automatic stay. Movant seeks relief under 11 U.S.C. § 362(d)(1)-(3). On May 11, 2021, Debtor filed an opposition. On May 18, 2021, Movant filed a reply.
Regarding 11 U.S.C. § 362(d)(1), Movant argues that the case was filed in bad faith and that the fair market value of the properties is declining, eliminating any adequate protection for Movant. Regarding 11 U.S.C. § 362(d)(2), Movant asserts that there is no equity in the Barstow Property and that Debtor does not have reasonable prospects for reorganizing. Regarding 11 U.S.C. § 362(d)(3), Movant asserts that the Court should treat the Barstow and Riverside properties as a "single project," and if the Court finds that this is a single asset real estate case, then § 362(d)(3) is clearly applicable. The Court notes that Movant has not maintained its argument under
§ 362(d)(3) in the reply.
11 U.S.C. § 362(d)(1)
There are two proffered bases for relief under § 362(d)(1): (1) lack of adequate protection; and (2) bad faith. Regarding the former argument, it would appear that uncontested that Movant presently has an adequate equity cushion; indeed, the figures in the Motion (pgs. 7-8) indicate an equity cushion in excess of 50%. Pointing to the continuing decline in the valuations declared by Debtor, and the intention to continue decrease the listing price, Movant contends that its equity cushion is eroding.
The Court notes, however, that Debtor’s intent to facilitate a quick sale by steadily decreasing the listing price does not necessarily indicate any decline in value. The steady decline in the properties’ valuations does place the credibility of the valuations in question, but § 362(g)(1) places the burden on the issue of equity on the Movant.
Here, lacking evidence that convincingly establishes that the Barstow Property is truly declining in value, and noting that Movant’s argument that it is not adequately protected appears premature at the present time, the Court cannot find that Movant
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lacks adequate protection.
The Court also is not convinced by Movant’s argument that this case was filed in bad faith. The fact that there are merely five creditors and that there were transfers of the subject property in 2018 and 2019 is not unusual for the type of Debtor that exists here – a business entity that was created for the sole purpose of owning parcels of real property. Instead, the record before the Court suggests that when Debtor filed this case it was reasonably plausible that Debtor would be able to sell the properties at a price that would enable it to pay all creditors in full.
11 U.S.C. § 362(d)(2) and (3)
First, the Court notes that Debtor does not appear to contemplate a reorganization. Instead, as indicated in the previous status report in this case, "Debtor believes its bankruptcy estate is solvent and can be expediently liquidated in this chapter 11 case." [Dkt. No. 65, pg. 2].
Turning to whether there is equity, the dispute between Movant and Debtor centers around the treatment of the cross-collateralized lien. Debtor contends that in the aggregate there is equity in the Barstow and Riverside properties, although it would appear, based on current listing prices, and because of the cross-collateralized lien, the amount of the liens secured against the Barstow Property exceeds its fair market value.
Debtor, however, asks this Court to attribute half (or all) of the value of the cross- collateralized lien to the Riverside Property, thereby reducing the amount attributable to the Barstow Property and creating equity in the latter. The Court notes that Debtor has not provided any caselaw supporting its proposed modification of the simply equity calculation. Importantly, Debtor’s argument that the Court should consider the aggregate value of the two properties, and the aggregate value of the liens attaching to those properties, essentially asks this Court to consider the properties as a single project.
But in its opposition to Movant’s request under § 362(d)(3), Debtor points out that the two subject parcels are located in different counties and are zoned different, and therefore are not a single project. Outside of the context of a liquidation in bankruptcy, these two parcels would not appear to be part of a common project. In
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these Chapter 11 liquidation proceedings, however, the "project" is simple – sell the two properties and satisfy the existing liens, including the cross-collateralized lien.
In short, it appears plainly inconsistent for Debtor to assert that these two parcels of property are not a common project and should be treated separately, while also asking this Court to acknowledge that it intends to sell the two properties, generate a common pot, and pay all creditors. Regardless of their "use" in a different context, in the context of the proceedings at issue here, the properties would appear to be part of a "single project," and thus 11 U.S.C. § 362(d)(3) may be satisfied. And, if treated separately, as the Court believes is the correct approach, then it would appear that 11
U.S.C. § 362(d)(2) has been satisfied.
APPEARANCES REQUIRED.
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Movant(s):
Barstow Daluvoy Project Lenders Represented By
William C Beall
2:00 PM
Also #12
From: 1/5/21, 4/6/21,4/20/21,5/25/21,6/22/21 EH
(Tele. appr. William Beall, rep. creditor, Barstow Daluvoy First Mortgage Investors, LP)
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
10:00 AM
EH
Docket 11
- NONE LISTED -
Debtor(s):
Oluwatosin Balogun Pro Se
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 22
- NONE LISTED -
Debtor(s):
Kathryn Jean Gomez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 13
- NONE LISTED -
Debtor(s):
Anahi Guadalupe Velazquez Represented By Marlin Branstetter
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
Also #5 EH
Docket 8
- NONE LISTED -
Debtor(s):
Victor Mayorga Alvarez Represented By Daniel King
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
Also #4 EH
Docket 12
- NONE LISTED -
Debtor(s):
Victor Mayorga Alvarez Represented By Daniel King
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 10
- NONE LISTED -
Debtor(s):
Carol D Barrera Pro Se
Trustee(s):
Arturo Cisneros (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Beatriz Gomez Represented By Marlin Branstetter
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
EH
Docket 17
7/7/2021
Service proper No opposition
On November 19, 2020, Heremelindo Herrera ("Debtor") filed a Chapter 7 voluntary petition. On March 1, 2021, Debtor was granted a discharge.
Prior to the meeting of creditors, Debtor submitted his 2019 tax returns to the Trustee. Based on Debtor’s 2019 tax returns, Trustee determined that the estate would be entitled to 92% of Debtor’s 2020 tax refund. Trustee has not received Debtor’s 2020 tax returns despite several requests made to Debtor’s counsel.
In e-mail exchanges between Debtor’s counsel and Trustee, Debtor’s counsel acknowledges that she has made efforts to explain to Debtor that he needs to provide his 2020 tax returns and any refunds (collectively, the "Property") to Trustee. The e- mail exchanges also indicate that Debtor has not responded to his counsel’s calls or emails.
On June 10, 2021, Trustee filed the instant motion for an order compelling Debtor to turnover the Property pursuant to 11 U.S.C. § 542(a) and (e).
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11 U.S.C. § 542(a) and (e) state:
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.
(e) Subject to any applicable privilege, after notice and a hearing, the court may order an attorney, accountant, or other person that holds recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs, to turn over or disclose such recorded information to the trustee.
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, as copies of the returns are necessary to the administration of the estate.
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).
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The Court is inclined to GRANT Trustee’s motion.
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):
Hermelindo Herrera Represented By Daniel King
Movant(s):
Larry D Simons (TR) Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 11
BACKGROUND
On March 10, 2021, Luz Dumlao Santos ("Debtor") filed a Chapter 7 voluntary petition. Debtor had previously filed a Chapter 13 case on August 24, 2020 but voluntarily dismissed that case on September 30, 2020.
On May 26, 2021, Debtor filed the instant motion seeking to avoid the junior judicial lien held by Luxor Properties, Inc. ("Creditor") in the amount of $70,925.00 pursuant to 11 U.S.C. §522(f) in the property Debtor claims as his homestead located at 7154 Catalpa Ave, Highland, CA 92346 ("Catalpa residence"). The Catalpa residence is also encumbered by a first position lien by Wells Fargo in the amount of $31,925.35. Debtor is claiming a homestead exemption of $456,000 pursuant to Cal. Code Civ.
Proc. ("C.C.P.") § 704.730. Per the appraisal, the fair market value of the Catalpa residence is $375,000.
On June 8, 2021, Creditor filed an opposition and request for a hearing arguing that Debtor’s homestead exemption amount should be calculated according to the version of C.C.P. § 704.730 in effect at the time its judicial lien was fixed on August 7, 2020. Under C.C.P. § 704.730 at the time the judicial lien was recorded, Debtor was eligible for $100,000 in homestead exemption. See C.C.P. § 704.730 (effective January 1, 2013 to December 31, 2020). Creditor argues that Debtor’s motion to avoid its lien should be denied because, if the homestead exemption is only $100,000, there is adequate value in the Catalpa residence to satisfy Creditor’s lien. In her June 23, 2021 reply, the Debtor contends that she is entitled to the homestead exemption under the current version of C.C.P. § 704.730, in effect as of the petition date, which allows
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Debtor a homestead exemption of $456,000.
DISCUSSION
11 U.S.C. § 522(f) provides in relevant part:
Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
a judicial lien . . .
For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—
the lien;
all other liens on the property; and
the amount of the exemption that the debtor could claim if there were no liens on the property;
exceeds the value that the debtor’s interest in the property would have in the absence of any liens.
11 U.S.C. § 522(f)(1)(A)-(2)(A)(i)-(iii).
The issue for the Court to resolve is whether Debtor’s homestead exemption amount is measured on the date Creditor’s judicial lien was recorded or on the date that Debtor filed for bankruptcy. The relevant date will determine whether Creditor’s lien impairs Debtor’s exemption under 11 U.S.C. § 522(f).
C.C.P. § 704.730 states that "if a homestead is sold . . . the proceeds . . . are exempt in the amount of the homestead exemption provided in Section 704.730." The current version of § 704.730(a)(1), (2), amended January 1, 2021, provides that:
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The amount of the homestead exemption is the greater of the following:
The countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgement debtor claims the exemption, not to exceed six hundred thousand dollars ($600,000).
Three hundred thousand dollars ($300,000).
C.C.P. § 704.730(a)(1), (2).
In her Chapter 7 petition filed March 10, 2021, Debtor claimed an automatic homestead exemption pursuant to C.C.P. § 704.730 in the amount of $456,000 for the Catalpa residence. Creditor asserts that Debtor is only entitled to the $100,000 exemption amount allowed under C.C.P. § 704.730 at the time the judicial lien was fixed in August of 2020. C.C.P. § 704.730 (effective January 1, 2013 to December 31, 2020)).
The Court adopts the ruling in In re Mayer, 167 B.R. 186 (9th Cir. B.A.P. 1994) and the subsequent reasoning in the unpublished 9th Circuit B.A.P. decision, In re Zall, 2006 Bankr. LEXIS 4886 (9th Cir B.A.P. 2006). The measuring date for a homestead exemption is Debtor’s petition date of March 10, 2021.
The facts of In re Mayer parallel the facts here. The debtor in Mayer claimed a homestead exemption under C.C.P. § 704.730 in the amount available for the year he filed for bankruptcy. Mayer, 167 B.R. at 187. The creditors contended and the bankruptcy court held that the debtor’s exemption was calculated according to the year their judgement lien was fixed. Id. The B.A.P. overruled the bankruptcy court, holding that "exemptions are determined as of the date the bankruptcy petition was filed." Id. at 188. The panel determined that judgement liens do not affect the exemption a debtor is entitled to claim. Id. at 189. Rather, it is the trustee’s "hypothetical levy" on the property upon the petition date that "the court must focus on in analyzing [debtors’] entitlement to a homestead exemption." Id.
More recently, the 9th Circuit B.A.P. in In re Zall explained at length why the Mayer decision was correct. 2006 Bankr. LEXIS 4886 (9th Cir B.A.P. 2006). Debtor’s attorney also seemed to have found this case, as he pasted almost the entire opinion word-for-word in Debtor’s reply without providing a citation. Nevertheless, the panel
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in Zall points out the impracticality of Creditor’s argument:
Creditor contends that California exemption law in effect on the petition date provides that parties should refer to prior versions of the statutes to determine whether the exemption amount of a judgment lien predates the current enactment. This procedure is not only unworkable in the bankruptcy context, but it is also inconsistent with the Bankruptcy Code.
First, as a practical matter, if the exemption amount is fixed as of the dates of multiple judgment liens, a debtor may have varying amounts of exemptions in the same property. How would a bankruptcy trustee, who is generally the party who objects to a debtor's exemptions, be able to determine the appropriate amount of the exemption if there are multiple judgment liens against the property?
Id. at 7-8.
Further, measuring the exemption amount according to the judgement lien date does not align with the language of 11 U.S.C. § 522(f). As cited in full above, § 522(f) allows a debtor to "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." When calculating the impairment, courts are to consider the "amount of the exemption that the debtor could claim if there were no liens on the property." 11
U.S.C. § 522(f)(2)(A)(iii). Therefore, "[i]n order to determine the amount of an exemption that Debtors could claim if there were no liens on the property, the court must look not to the time the lien was fixed but rather to the time the trustee’s hypothetical levy became effective, which is the date Debtors filed their bankruptcy petition." Zall, 2006 Bankr. at 9.
Creditor relies on In re Morgan, 157 B.R. 467 (Bankr. C.D. Cal. 1993), and the language of C.C.P. § 703.050 and C.C.P. § 704.965 to assert that Debtor’s exemption should be calculated from the date the judgement lien attached to the property.
However, unlike the present case, In re Morgan does not pertain to the automatic homestead exemption statute. Further, Morgan was decided prior to the decisions issued by the 9th Circuit B.A.P. in In re Mayer and In re Zall.
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Although the language of C.C.P. §§ 704.965 and 703.050 state that the exemption amount is measured by the judgement lien date, these statutes are inapplicable, as the
B.A.P. in In re Zall explains: "[t]he policy . . . of allowing states to opt out of the federal exemption scheme is not absolute." Zall, 2006 Bankr. at 11. "To the extent that the California exemption law attempts to establish a procedure that overrides the well-settled bankruptcy law regarding the date for determining an exemption, it is preempted." Id. (citing to In re Kim, 257 B.R. 680, 687 (9th Cir. B.A.P. 2000)). Therefore, because C.C.P. §§ 703.050 and 704.965 conflict with the formula provided by 11 U.S.C. §522(f) to calculate the exemption amount at the petition date, the state laws are preempted.
11 U.S.C. § 522(f)(2)(A) provides the formula for determining whether a judicial lien "impairs" an exemption:
For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—
the lien;
all other liens on the property; and
the amount of the exemption that the debtor could claim if there were no liens on the property;
exceeds the value that the debtor’s interest in the property would have in the absence of any liens.
11 U.S.C. § 522(f)(2)(A)(i)-(iii).
Creditor’s lien is $70,935.
Wells Fargo’s first position lien is $31,925.35.
Debtor claims a homestead exemption of $456,000.
$70,935 + $31,925.35 + $456,000= $558,860.35.
The Catalpa residence was appraised at $375,000.
$558,860.35 exceeds the Catalpa residence’s value of $375,000. Therefore, according
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to 11 U.S.C. § 522(f), Creditor’s lien impairs Debtor’s exemption and should be avoided.
TENTATIVE RULING
In accordance with the foregoing, the Court is inclined to GRANT the motion to avoid lien under 11 U.S.C. § 522(f).
APPEARANCES REQUIRED.
Debtor(s):
Luz Dumlao Santos Represented By Edgar P Lombera
Movant(s):
Luz Dumlao Santos Represented By Edgar P Lombera Edgar P Lombera Edgar P Lombera
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
(Tele. appr. Robert Whitmore, rep, chapter 7 trustee)
Docket 226
Service was proper. Opposition filed by Debtor.
The applications for compensation of the Trustee, Accountant for Trustee, and Best Best & Krieger ("Counsel") have been set for hearing on the notice required by LBR 2016-1. Debtor filed an objection to Trustee and Counsel’s fee application on June 1, 2021. Counsel filed a reply on June 16, 2021. The Court notes that the administrative fees increased, in part, as a consequence of Debtor’s general lack of cooperation, for example, with this Court’s order entered on June 27, 2019 granting the sale of 13247 Mammoth Street, Hesperia, CA ("Property"). The Court had continued the hearing from 6/23/2021 to review Counsel’s fee application.
The Court previously entered an interim order reducing Counsel’s fees by $6,736.00 and allowing fees in the amount of $34,358.50 and costs in the amount of $2,029.19 for the period of March 21, 2016 to February 5, 2019. The instant fee application covers the period February 6, 2019 through November 9, 2020 for 106 hours of work at a blended hourly rate of $394.78. The Court acknowledges that most of the fees for this period were incurred due to Debtor’s attempts to conceal ownership of assets and delay their liquidation. Notwithstanding, certain entries reveal excessive, vague, and unnecessary billing by Counsel pursuant to 11 U.S.C. § 330.
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For example, Counsel logged over 29 hours of work – including a 10.7 hour entry on 5/13/19 – on the opposition to motion for stay pending appeal. Attorneys also logged
multiple additional entries of several hours spent drafting, redrafting, reviewing, and revising said opposition. (Fee App., Pgs. 42-44). Some of these entries suffer further from vague descriptions, like 5/08/19’s entry of "analysis re stay pending appeal." Additionally, 2.8 hours were logged on 5/14/19 to finalize the motion and draft request for judicial notice.
Although the opposition is a 17-page motion and likely took some time in preparing, such excessive time logged in drafting, researching, reviewing, and tinkering an opposition to the Debtor’s four-page motion, cannot be ignored by the Court. As such, the Court is inclined to reduce the 25.1 hours billed for drafting the motion and the 1.4 hours spent preparing for the hearing in half for a reduction of $3,832.
Counsel also billed 7.8 hours/$2,490 drafting and revising the motion to sell real property, which the Court finds excessive given the contents of the motion. Additionally, Counsel logged 1.8 hours on 2/6/19 to prepare for the OSC hearing, and then .7 hours on 2/26/19 to prepare for the continued hearing on the OSC. The Court cannot evaluate whether this was reasonable given the vague descriptions and finds that the $1,250 billed is excessive. Here, the Court is also inclined to reduce these entries by half for a reduction of $1,870.
Finally, other entries reveal an overbilling due to the attorney taking on work that could have been done by the real estate broker or a paralegal. For example, a partner billed .2 hours for reviewing the Zillow value of the Property and .4 hours for twice communicating with the property manager regarding access to the Property for real estate showings on 4/8/19 and 4/9/19. The Court is inclined to reduce these fees by $250.
The Court also notes its displeasure with Counsel’s practice of separating closely related work entries into multiple categories, obscuring the record, and unnecessarily complicating the Court’s review and analysis of the time sheets. In sum, the Court is inclined to reduce Counsel’s fees for this period by $5,952 from $42,006 to $36,054, which the Court notes reduces Trustee’s fees, as indicated below, subject to Trustee’s comments.
Pursuant to the Trustee's final report, and the above discussion, the Court is inclined to APPROVE the following administrative expenses on a final basis:
Trustee Fees: $ 8,953.08 Trustee Expenses: $ 986.74
Attorney Fees: $ 70,412.50 Attorney Expenses: $ 6,841.45
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Accountant Fees: $ 1,838 Accountant Expenses: $ 277.80
APPEARANCES REQUIRED.
Debtor(s):
James Lloyd Walker Represented By
Andrew Edward Smyth William J Smyth
Trustee(s):
Robert Whitmore (TR) Represented By Caroline Djang
2:00 PM
Adv#: 6:21-01035 Meislik v. Hutton Foundation, Inc
From: 5/26/21 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):
Hutton Foundation, Inc Represented By William C Beall
2:00 PM
Plaintiff(s):
Adam Meislik Represented By Richard A Marshack David Wood
2:00 PM
Adv#: 6:20-01085 Pringle v. Khozam
Also #12 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 24
No opposition.
Service appears proper.
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. 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 Margaret Khozam ("Defendant"). On February 8, 2021, the Trustee filed a first amended complaint ("FAC"). Trustee’s
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FAC contains three causes of action: (1) actually fraudulent transfer; (2) constructively fraudulent transfer; and (3) recovery of avoided transfers.
The FAC 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
$50,000 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On June 7, 2021, Trustee filed the instant motion [Dkt. 24] for default judgment against Defendant, after the time period expired for filing an answer to the FAC. The motion for default judgment requests judgment as to the first and third causes of action in the FAC.
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 FAC
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 FAC 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 8484 Planetary Dr., Buena Park, CA 90620 and 212 S Delano St., Apt. 1, Anaheim, CA 92804, based on two listed addresses contained in the Westlaw database PeopleMap Report. See Dkt. 24, Ex. 7.
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 FAC relating to liability as true.").
Here, the FAC includes three causes of action, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding avoidance of fraudulent transfer – actual intent, the first claim for relief cites 11
U.S.C. §§ 544(b), 550 and CAL. CIV. CODE § 3439.04(a)(1). §544(b)(1) allows the trustee to avoid transfers that are voidable under state law. CAL. CIV. CODE §
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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
"Inasmuch as the purpose of California fraudulent conveyance law in no way differs from that of Bankruptcy Code § 548, the discussion applicable to the first disposes of claims under the latter as well." Kupetz v. Wolf, 845 F.2d 842, 845 (9th Cir. 1988); see also In re ThinkFilm, LLC, 510 B.R. 266, 274 (C.D. Cal. 2014) ("The federal fraudulent transfer provisions are ‘similar in form and substance’ to California’s fraudulent conveyance statutes…") (citing In re United Energy Corp., 944 F.2d 589, 594 (9th Cir. 1991)). 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 $50,000 are transfers of Debtors’ property, as PIG’s assets were consolidated into the Debtors’ bankruptcy case. The transfers occurred between December 23, 2013 and June 2, 2014. The petition date was December 8, 2017. The Court extended the deadline for the Trustee to file an action under 11 U.S.C. § 546, and this proceeding was filed within the deadline set by the Court. Therefore, the transfers occurred within the four-year period to file the instant action as prescribed by 11 U.S.C. § 546(a). See Dkt. 24, Ex. 2 & 3.
Per the general allegations in the FAC, 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
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2013 against the Debtors. See Dkt. 24, 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 recover them for the benefit of the estate pursuant to 11 U.S.C. §§ 550 and 551.
APPEARANCES REQUIRED.
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
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
2:00 PM
David M Goodrich Reem J Bello
2:00 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))
Also #11
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
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#: 6:20-01058 Pringle v. Gendy
Also #14 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 29
No opposition.
Service appears proper.
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. 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 Medhat Gendy ("Defendant"). On February 8, 2021, the Trustee filed a first amended complaint ("FAC"). Trustee’s
2:00 PM
FAC contains three causes of action: (1) actually fraudulent transfer; (2) constructively fraudulent transfer; and (3) recovery of avoided transfers.
The FAC 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. Per the instant motion for default judgment filed on June 7, 2021 [Dkt. 29], the FAC erroneously states that Defendant received $194,116.85 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG"). Trustee is only seeking to recover $184,116.85 and requests judgment only as to the first and third causes of action in the FAC.
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
2:00 PM
Proper Service of Summons and FAC
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 FAC 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 2910 W Ravenswood Dr., Anaheim, CA 92804 and 3526 Vinton Ave. Apt. 7, Los Angeles, CA 90034, based on two listed addressed contained in the Westlaw database PeopleMap Report. See Dkt. 29, Ex. 7.
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 FAC relating to liability as true.").
Here, the FAC includes three causes of action, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding 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). §544(b)(1)
allows the trustee to avoid transfers that are voidable under state law. CAL. CIV. CODE
§ 3439.04(a)(1) provides:
2:00 PM
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
"Inasmuch as the purpose of California fraudulent conveyance law in no way differs from that of Bankruptcy Code § 548, the discussion applicable to the first disposes of claims under the latter as well." Kupetz v. Wolf, 845 F.2d 842, 845 (9th Cir. 1988); see also In re ThinkFilm, LLC, 510 B.R. 266, 274 (C.D. Cal. 2014) ("The federal fraudulent transfer provisions are ‘similar in form and substance’ to California’s fraudulent conveyance statutes…") (citing In re United Energy Corp., 944 F.2d 589, 594 (9th Cir. 1991)). 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 $184,116.85 are transfers of Debtors’ property, as PIG’s assets were consolidated into the Debtors’ bankruptcy case. The transfers occurred between December 17, 2013 and March 25, 2015. The petition date was December 8, 2017. This Court extended the deadline for the Trustee to file an action under 11
U.S.C. § 546, and this proceeding was filed within the deadline set by the Court. Therefore, the transfers occurred within the four-year period to file the instant action as prescribed by 11 U.S.C. § 546(a). See Dkt. 29, Ex. 2 & 3.
Per the general allegations in the FAC, 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. 29, Ex. 1. Accepting these allegations as true, the Court is inclined to find Trustee has established that the payments to Defendant are
2:00 PM
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 recover them for the benefit of the estate pursuant to 11 U.S.C. §§ 550 and 551.
APPEARANCES REQUIRED.
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
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
2:00 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))
Also #13
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/13/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Medhat Saad Gendy Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By
2:00 PM
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#: 6:20-01072 Pringle v. Goldvilla Ltd
Also #16 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 32
No opposition.
Service appears proper.
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. 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 Goldvilla Ltd. ("Defendant"). On February 8, 2021, the Trustee filed a first amended complaint ("FAC"), which was
2:00 PM
corrected on March 26, 2021 and served on April 5, 2021. Trustee’s FAC contains three causes of action: (1) actually fraudulent transfer; (2) constructively fraudulent transfer; and (3) recovery of avoided transfers.
The FAC 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
$317,083 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On June 7, 2021, Trustee filed the instant motion [Dkt. 32] for default judgment against Defendant, after the time period expired for filing an answer to the FAC. The motion for default judgment requests judgment as to only the first and third causes of action in the FAC.
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.
2:00 PM
Motion for Default Judgment
Proper Service of Summons and FAC
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 FAC 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 2220 Hillcrest St., Orlando, FL 32803, based on the listed address contained in the Westlaw database PeopleMap Report. See Dkt. 32, Ex. 7.
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 FAC includes three causes of action, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding avoidance of fraudulent transfer – actual intent, the first claim for relief cites 11
U.S.C. §§ 544(b), 550 and CAL. CIV. CODE § 3439.04(a)(1). §544(b)(1) allows the
2:00 PM
trustee to avoid transfers that are voidable under state law. 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
"Inasmuch as the purpose of California fraudulent conveyance law in no way differs from that of Bankruptcy Code § 548, the discussion applicable to the first disposes of claims under the latter as well." Kupetz v. Wolf, 845 F.2d 842, 845 (9th Cir. 1988); see also In re ThinkFilm, LLC, 510 B.R. 266, 274 (C.D. Cal. 2014) ("The federal fraudulent transfer provisions are ‘similar in form and substance’ to California’s fraudulent conveyance statutes…") (citing In re United Energy Corp., 944 F.2d 589, 594 (9th Cir. 1991)). 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 $317,083 are transfers of Debtors’ property, as PIG’s assets were consolidated into the Debtors’ bankruptcy case. The transfers occurred between June 2, 2014 and January 1, 2015. The petition date was December 8, 2017. Accordingly, the transfers occurred within the four-year period preceding the filing of a petition as prescribed by CAL. CIV. CODE § 3439.09. The Court extended the deadline for the Trustee to file an action under 11 U.S.C. § 546, and this proceeding was filed within the deadline set by the Court. Therefore, the transfers occurred within the required period to file the instant action as prescribed by 11 U.S.C. § 546(a). See Dkt. 32, Ex. 2 & 3.
Per the general allegations in the FAC, Debtors were running a Ponzi scheme by
2:00 PM
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. 32, 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 recover them for the benefit of the estate pursuant to 11 U.S.C. §§ 550 and 551.
APPEARANCES REQUIRED.
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla Ltd 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
2:00 PM
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01072 Pringle v. Goldvilla Ltd
of Service) by David M Goodrich on behalf of John P. Pringle against Goldvilla. (RE: related document(s)1 Adversary case 6:20-ap-01072. Complaint by John
P. Pringle against Goldvilla. (Charge To Estate - $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) Modified on 5/12/2020 filed by Plaintiff John P. Pringle). (Goodrich, David)
Also #15 From: 6/21/21
(Another Summons Issued 4/5/21)
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 23
- NONE LISTED -
2:00 PM
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Goldvilla 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
2:00 PM
Adv#: 6:20-01090 Pringle v. Sawires
Also #18 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 25
No opposition.
Service appears proper.
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. 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 Sanad Sawires ("Defendant"). On February 8, 2021, the Trustee filed a first amended complaint ("FAC"). Trustee’s
2:00 PM
FAC contains three causes of action: (1) actually fraudulent transfer; (2) constructively fraudulent transfer; and (3) recovery of avoided transfers.
The FAC 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
$106,900 from an entity controlled by Debtors, Professional Investment Group LLC ("PIG").
On June 7, 2021, Trustee filed the instant motion [Dkt. 25] for default judgment against Defendant, after the time period expired for filing an answer to the FAC. The motion for default judgment requests judgment as to only the first and third causes of action in the FAC.
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.
2:00 PM
Motion for Default Judgment
Proper Service of Summons and FAC
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 FAC 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 1530 Leanne Ter., Walnut, CA 91789, 24256 Brookwood Dr., Diamond Bar, CA 91765, and 1815 Morgan Ln. #B, Redondo Beach, CA 90278, based on two listed addressed contained in the Westlaw database PeopleMap Report. See Dkt. 25, Ex. 7.
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 FAC relating to liability as true.").
Here, the FAC includes three causes of action, although the motion for default judgment only proceeds upon the first and third causes of action. Regarding 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). §544(b)(1)
2:00 PM
allows the trustee to avoid transfers that are voidable under state law. 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
"Inasmuch as the purpose of California fraudulent conveyance law in no way differs from that of Bankruptcy Code § 548, the discussion applicable to the first disposes of claims under the latter as well." Kupetz v. Wolf, 845 F.2d 842, 845 (9th Cir. 1988); see also In re ThinkFilm, LLC, 510 B.R. 266, 274 (C.D. Cal. 2014) ("The federal fraudulent transfer provisions are ‘similar in form and substance’ to California’s fraudulent conveyance statutes…") (citing In re United Energy Corp., 944 F.2d 589, 594 (9th Cir. 1991)). 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 $106,900 are transfers of Debtors’ property, as PIG’s assets were consolidated into the Debtors’ bankruptcy case. The transfers occurred between December 13, 2013 and November 17, 2016. The petition date was December 8, 2017. Accordingly, the transfers occurred within the four-year period preceding the filing of a petition as prescribed by CAL. CIV. CODE § 3439.09. The Court extended the deadline for the Trustee to file an action under 11 U.S.C. § 546, and this proceeding was filed within the deadline set by the Court. Therefore, the transfers occurred within the required period to file the instant action as prescribed by 11 U.S.C. § 546(a). See Dkt. 25, Ex. 2 & 3.
Per the general allegations in the FAC, Debtors were running a Ponzi scheme by
2:00 PM
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. 25, 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 recover them for the benefit of the estate pursuant to 11 U.S.C. §§ 550 and 551.
APPEARANCES REQUIRED.
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
Movant(s):
John P. Pringle Represented By David M Goodrich
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#: 6:20-01090 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)
Also #17
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Sanad Sawires 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#: 6:21-01057 Speier, Chapter 7 Trustee v. Northwestern Mutual Life Insurance Company,
EH
Docket 1
- NONE LISTED -
Debtor(s):
Daisy Wheel Ribbon Co., Inc. Represented By Louis J Esbin
Defendant(s):
Northwestern Mutual Life Insurance Pro Se Harold W. Baer Pro Se
Sharon M. Baer Pro Se
Plaintiff(s):
Steven M Speier, Chapter 7 Trustee Represented By
Robert P Goe
2:00 PM
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
11:00 AM
Docket 98
Debtor(s):
Aurelio Palma Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
(Tele. appr. Marjorie Johnson, rep. U.S. Bank National Association)
Docket 45
- NONE LISTED -
Debtor(s):
Juan Hernandez Represented By Rebecca Tomilowitz
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/22/21.
MOVANT: BANK OF AMERICA
EH
Docket 115
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Movant(s):
Bank of America, N.A. Represented By Raymond Jereza
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WELLS FARGO BANK N.A.
EH
(Tele. appr. Todd Garan, rep. creditor, Wells Fargo Bank) (Tele. appr. Trang Nguyen, rep. Debtor)
Docket 74
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed twelve car payments. Accordingly, 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 ¶ 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.
11:00 AM
Debtor(s):
Michael Anthony Delgado III Represented By
Gary S Saunders - SUSPENDED -
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FREEDOM MORTGAGE CORPORATION
From: 4/20/21,5/25/21,6/29/21 EH
(Tele. appr. Dan Exnowski, rep. creditor, Freedom Mortgage) (Tele. appr. Suzette Douglas, rep. Debtor)
Docket 34
- NONE LISTED -
Debtor(s):
Jerold Ray Hoxie Represented By Suzette Douglas
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski Ciro Mestres
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: WOLLEMI ACQUISITIONS, LLC
EH
(Tele. appr. Marjorie Johnson, rep. Wollemi Acquisitions, LLC)
Docket 41
For the reasons stated 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):
Diego Retana Represented By Todd L Turoci
Joint Debtor(s):
Grecia Marielos Retana Represented By
11:00 AM
Movant(s):
Todd L Turoci
Wollemi Acquisitions, LLC Represented By Marjorie M Johnson
Trustee(s):
Howard B Grobstein (TR) Pro Se
11:00 AM
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
(Tele. appr. Alan Wolf, rep. Movant)
(Tele. appr. Michael Smith, rep. rep. Debtors)
Docket 123
Parties to apprise the Court of the status of mortgage arrears and of any adequate protection discussion.
APPEARANCES REQUIRED.
Debtor(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
11:00 AM
Joint Debtor(s):
Christine E. Allen Represented By Christopher J Langley Michael Smith
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/22/21
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
(Tele. appr. Erica Taylor Loftis Pacheco, rep. creditor, SchoolsFirst Federal Credit Union)
(Tele. appr. Summar Shaw, rep. Debtor)
Docket 44
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed four mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 12;
Movant to include in the proposed order a provision providing that: "In granting relief from stay the Court does not rule on the applicability of any pandemic-related
11:00 AM
moratoriums."
APPEARANCES WAIVED. 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 Odinni Lawrence Represented By Summer M Shaw
Joint Debtor(s):
Vonetta Isioma Lawrence Represented By Summer M Shaw
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/22/21
MOVANT: NISSAN MOTOR ACCEPTANCE CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. Nissan Motor Acceptance Corp.) (Tele. appr. Suzette Douglas, rep. Debtor)
Docket 32
- NONE LISTED -
Debtor(s):
Martha E Morales Represented By Suzette Douglas
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
(Tele. appr. Marjorie Johnson, rep. Capital One Auto Finance)
Docket 103
Parties to apprise the Court of the status of the adequate protection stipulation. APPEARANCES REQUIRED.
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA LEASE TRUST
EH
(Tele. appr. Kirsten Martinez, rep. Toyota Lease Trust)
Docket 34
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed three car payments. Accordingly, 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;
-GRANT relief from the co-debtor 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.
11:00 AM
Debtor(s):
Jennifer Lopez Represented By Andy Nguyen
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TOYOTA MOTOR CREDIT CORPORATION
EH
(Tele. appr. Kirsten Martinez, rep. Toyota Motor Credit Corp.)
Docket 67
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed three mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY alternative request under ¶ 13 as MOOT;
Movant to include in the proposed order a provision providing that: "In granting relief from stay the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Maria Elvia Hernandez Represented By Christopher J Langley
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Karl T Anderson (TR) Represented By Tinho Mang
Richard A Marshack Chad V Haes
11:00 AM
MOVANT: 21ST MORTGAGE CORPORATION
EH
(Tele. appr. Diane Weifenbach, rep. creditor, 21st Mortgage Corporation)
Docket 11
Pursuant to CAL. REV. & TAX. Code § 5801, a manufactured home is not classified as real property, and is therefore subject to Debtor completing a statement of intention. 11 U.S.C. § 362(h)(1)(A), (B) (emphasis added) states:
(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)
11:00 AM
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
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. §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;
Here, as Movant points out, although Debtor has selected to retain the manufactured home by entering into a reaffirmation agreement, there is no evidence of an executed reaffirmation agreement on the record despite Movant’s assertion of attempts to enter one. As the 341(a) meeting was set for May 25, 2021, the deadline for Debtor to perform his intention passed on June 24, 2021 pursuant to 11 U.S.C. § 521(a)(2)(B). Therefore, the automatic stay has terminated as a matter of law under 11 U.S.C. § 362(h)(1). Therefore, the Court is inclined to DENY the motion as MOOT, and Movant may proceed under applicable law.
APPEARANCES REQUIRED.
Debtor(s):
Rafael Fausto Represented By Christopher Hewitt
11:00 AM
Movant(s):
21st Mortgage Corporation Represented By Diane Weifenbach
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: I.L.W.U. CREDIT UNION
EH
Docket 10
11 U.S.C. § 362(h)(1)(A) (emphasis added) states:
(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
Here, Debtor has left the statement of intention as to the 2014 Mercedes Benz blank.
11:00 AM
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 thirty-day deadline for filing or amending the statement of intention passed on June 3, 2021 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):
Wildo Amadeo Mereles Represented By Brian J Soo-Hoo
Movant(s):
I.L.W.U. Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Steven M Speier (TR) Pro Se
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: EXETER FINANCE LLC
EH
(Tele. appr. Sheryl Ith, rep. creditor, Exeter Finance LLC)
Docket 9
For the reasons stated in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Daniel Sanchez Represented By Brian J Soo-Hoo
11:00 AM
Movant(s):
Exeter Finance LLC Represented By Sheryl K Ith
Trustee(s):
Karl T Anderson (TR) Pro Se
1:00 PM
Also #7, 9
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, 9/30/20, 1/13/21, 3/30/21/5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
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
1:00 PM
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
1:00 PM
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee) (Tele. appr. Marc Lieberman, rep. Debtor)
(Tele. appr. Everett Green, rep. United States Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
Docket 539
- 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
1:00 PM
Also #
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, 9/30/20,1/12/21, 3/30/21,5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
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
1:00 PM
1:00 PM
Adv#: 6:16-01279 Allied Injury Management, Inc. v. One Stop Multi-Specialty Medical Group
(HOLDING DATE)
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, 9/28/20,1/13/21,
3/30/21,5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
Defendant(s):
One Stop Multi-Specialty Medical Represented By
1:00 PM
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
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
1:00 PM
Adv#: 6:18-01109 David M. Goodrich, Chapter 11 Trustee v. Titanium Resource Company,
(HOLDING DATE)
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, 9/30/20/1/13/21, 3/30/21,5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee) (Tele. appr. Marc Lieberman, rep. Defendant)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
1:00 PM
Defendant(s):
Titanium Resource Company, Inc., a Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
1:00 PM
Adv#: 6:18-01110 David M. Goodrich, Chapter 11 Trustee v. Larson, D.C., an individual
Recovery of money/property - 548 fraudulent transfer
(HOLDING DATE)
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, 9/30/20,1/13/21, 3/30/21,5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee) (Tele. appr. Marc Lieberman, rep. Defendant)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
Docket 1
- NONE LISTED -
Debtor(s):
Allied Injury Management, Inc. Represented By Alan W Forsley
1:00 PM
Defendant(s):
John Larson, D.C., an individual Represented By
Alan W Forsley
Plaintiff(s):
David M. Goodrich, Chapter 11 Represented By Steven Werth
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
1:00 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,
9/30/20,1/13/21, 3/30/21,5/4/21
EH
(Tele. appr. David Goodrich, chapter 11 trustee)
(Tele. appr. Mark Horoupian, rep. David Goodrich, chapter 11 Trustee)
(Tele. appr. Kenneth Hennesay Jr. rep. secured creditor, Cambridge Medical Funding II, LLC)
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
1:00 PM
John C. Larson Pro Se
Plaintiff(s):
Cambridge Medical Funding Group Represented By
Kenneth Hennesay
Trustee(s):
David M Goodrich (TR) Represented By Mark S Horoupian Jason Balitzer Victor A Sahn Steven Werth
2:00 PM
EH
(Tele. appr. Nicholas Gebelt, rep. Debtor, Markus Boyd)
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, 8/25/20,1/12/21
Also #22 EH
(Tele. appr. Nicholas Gebelt, rep. Debtor, Markus Boyd)
Docket 16
- NONE LISTED -
Debtor(s):
Markus Anthony Boyd Represented By Nicholas W Gebelt
11:00 AM
Docket 30
- NONE LISTED -
Debtor(s):
Justin Hoang Tran Represented By Roman Quang Vu
Joint Debtor(s):
Xuan Suong Ho Thi Tong Represented By Roman Quang Vu
Movant(s):
Justin Hoang Tran Represented By Roman Quang Vu
Xuan Suong Ho Thi Tong Represented By Roman Quang Vu
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
(Tele. appr. John Pringle, chapter 7 trustee)
(Tele. appr. Nancy Hoffmeier Zamora, rep. John Pringle, chapter 7 trustee)
Docket 44
No opposition has been filed. Service was Proper.
11 U.S.C. § 326(a) states:
In a case under chapter 7 or 11, the court may allow reasonable compensation under section 330 of this title of the trustee for the trustee’s services, payable after the trustee renders such services, not to exceed 25 percent on the first
$5,000 or less, 10 percent on any amount in excess of $5,000 but not in excess of $50,000, 5 percent on any amount in excess of $50,000 but not in excess of
$1,000,000, and reasonable compensation not to exceed 3 percent of any moneys in excess of $1,000,000, upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.
(emphasis added).
Trustee is basing his requested compensation in this case on $174,684.05 in compensable "receipts," but that amount includes $114,162.12 paid to Aylstock, Witkin, Kreis & Overholtz, PLLC and $14,000 for an MDL assessment, which do not appear properly categorized as a receipt because these moneys were not, at any time, held or administered by Trustee, let alone received by Trustee, or disbursed by Trustee. This Court has consistently and repeatedly held that in such circumstances,
11:00 AM
the money should not be included in the Chapter 7 trustee’s compensation base, as outlined below.
Not only are the requested fees incompatible with the plain language of the statute, which calculates fees based on moneys disbursed or turned over by the trustee, the fees cannot be reasonably justified on policy grounds. In this case, the state court counsel incurred significant legal fees litigating a state court matter while the instant bankruptcy was closed. The state court counsel’s work on this matter was, in no matter whatsoever, related to the administration of the bankruptcy estate, and Trustee did not participate in, direct, or even have an awareness of the fees incurred. Case law notes that important distinction:
The reported decisions construing section 326(a) have recognized a distinction between funds that are constructively received and funds that are actually received. These cases stand for the proposition that a commission can only be calculated upon the funds actually received by the trustee. In this particular case, the trustee never received any settlement proceeds that were paid directly to the debtor’s personal injury counsel in fees and expenses or to the worker’s compensation carrier.
In re Guido, 237 B.R. 562, 564-65 (Bankr. E.D.N.Y. 1999) (citations omitted); see also Kandel v. Alexander Leasing Corp., 107 B.R. 548 (N.D. Ohio 1988) (proceeds of settlement were not "money disbursed" where the trustee cannot point to any time at which the moneys actually passed through his hands); In re New England Fish Co., 34 B.R. 899, 902 (Bankr. W.D. Wash. 1983) ("[I]n view of the majority of the cases under prior law and the plain and unambiguous wording of section 326(a), this Court concludes that the trustee’s compensation must be based on actual monies disbursed to parties in interest, and not on assets or settlements which can be construed as a constructive disbursement.").
In light of the foregoing, the Court is inclined to reduce the basis upon which Trustee’s statutory fee is calculated, eliminating those amounts which were at no time administered, held, received, or disbursed by Trustee. The remaining cognizable disbursements appear to be a bank service fee of $908.04, attorney fees and expenses
11:00 AM
in the amount of $9,249, accountant fees and expenses in the amount of $2,027, and payments to creditors in the amount of $21,221.77, for an aggregate amount of
$33,405.81. Therefore, the Court is inclined to approve Trustee’s fees in the reduced amount of $4,090.58. The Court also notes that Trustee did not provide any evidentiary support for the requested trustee expenses.
Trustee Fees: $ 4,090.58 Trustee Expenses: $ 0.00
Attorney Fees: $ 8,745.00 Attorney Expenses: $ 504.00
Accountant Fees: $ 1,750 Accountant Expenses: $ 277.00
APPEARANCES REQUIRED.
Debtor(s):
Maria Teresa Ingal Batac Represented By George P Hobson Jr
Trustee(s):
John P Pringle (TR) Represented By Nancy H Zamora
11:00 AM
Docket 40
- NONE LISTED -
Debtor(s):
Steven A Velasquez Sr. Represented By Marc E Grossman
Joint Debtor(s):
Paisley E Velasquez Represented By Marc E Grossman
Movant(s):
Paisley E Velasquez Represented By Marc E Grossman
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
EH
(Tele. appr. Walter Scott, rep. Debtors)
(Tele. appr. Anna Landa, rep. chapter 7 trustee)
Docket 33
- NONE LISTED -
Debtor(s):
Sotero Chandler Elias Ramas III Represented By
Walter Scott
Joint Debtor(s):
Harvy Yojany Ortiz Campo Represented By Walter Scott
Movant(s):
Todd A. Frealy (TR) Represented By Anna Landa
Trustee(s):
Todd A. Frealy (TR) Represented By Anna Landa
11:00 AM
Docket 27
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: $ 2,700.00 Trustee Expenses: $ 183.42
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 Burnett Represented By Marc A Duxbury
Joint Debtor(s):
Elsa Burnett Represented By
Marc A Duxbury
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
(Tele. appr. Lynda Bui, chapter 7 trustee)
Docket 66
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: $3,974.88 Trustee Expenses: $1,769.95
The above amounts reflect a reduction in Trustee expenses in the amount of $657.60 for copying more than 3,000 pages related to the sale motion twice, the second time after the original notice of hearing attempted to set the hearing on an unavailable hearing date.
As to Accountant’s fees and expenses of $3,232.30, the Court this excessive for the preparation of one year’s state and federal tax returns. Accountant may supplement by providing copies of redacted tax returns.
APPEARANCES REQUIRED.
Debtor(s):
Raymundo Avalos Sanchez Represented By
11:00 AM
Robert L Firth
Joint Debtor(s):
Gema Avalos Represented By Robert L Firth
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
(Placed on calendar by order entered 6/21/21) EH
(Tele. appr. Nancy Hoffmeier Zamora, rep. chapter 7 trustee, Larry Simon) (Tele. appr. Larry Simons, chapter 7 trustee)
Docket 100
- NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury - SUSPENDED - John E Bouzane
Movant(s):
Larry D Simons (TR) Represented By Nancy H Zamora
Trustee(s):
Larry D Simons (TR) Represented By Nancy H Zamora
11:00 AM
ap-01064- MH, John Pringle vs. Mina Farah; (2) Adversary Case No.: 6:20- ap-01059- MH, John Pringle vs. Boles Bishay; (3) Adversary Case No.: 6:20-
ap-01127- MH, John Pringle vs. Amir Maher Guirgus Awad; (4) Adversary Case No.: 6:20-ap-01126- MH, John Pringle vs. Emad Khalifa Botors (5) Adversary Case No.: 6:20-ap-01061- MH, John Pringle vs. Medhat Mikhael; (6) Adversary Case No.: 6:20-ap-01056- MH, John Pringle vs. Martin Amin Mettias; (7) Adversary Case No.: 6:20-ap-01091- MH, John Pringle vs. Sarwat Beshai (8) Adversary Case No.: 6:20-ap-01063- MH, John Pringle vs. Ramez Ghaly (9) Adversary Case No.: 6:20-ap-01077- MH, John Pringle vs. John Maurice Youssef And Sally Youssef (10) Adversary Case No.: 6:20-ap-01065- MH, John Pringle vs. Ehab Yassa (Sued as Ehap Yassa) (11) Adversary Case No.: 6:20- ap-01082- MH, John Pringle vs. Magda Wagdy (12) Adversary Case No.: 6:20- ap-01093- MH, John Pringle vs. St. George Medical Office, L.L.C. (13) Adversary Case No.: 6:20-ap- 01054- MH, John Pringle vs. Anruf Llc And Nadial Khalil (14) Adversary Case No.: 6:20-ap-01067- MH, John Pringle vs. Emad Eskander (15) Adversary Case No.: 6:20-ap-01060- MH, John Pringle vs.
Diamond Potrans Investments, Inc. (Sued As Diamond Portrans) (16) Adversary Case No.: 6:20-ap-01053- MH, John Pringle vs. Amgad Bebawy And Reham Nakhil (17) Adversary Case No.: 6:20-ap-01078- MH, John Pringle vs. Kaiwha Peng (18) Adversary Case No.: 6:20-ap- 01079- MH, John Pringle vs. Karam Fayez Kodsy (19) Adverary Case No.: 6:20-ap-01055- MH, John Pringle vs.
Antonio Mena (20) Adversary Case No.: 6:20-ap-01076- MH, John Pringle vs. John 20/20 Enterprises, Inc. (21) Adversary Case No.: 6:20-ap-01081- MH, John Pringle vs. Magda Labib And Khair Labib (22) Adversary Case No.: 6:20-
ap-01087- MH, John Pringle vs. Ray Zumut And Mary Zumut (23) Adversary Case No.: 6:20-ap-01068- MH, John Pringle vs. Rafat Gerges (24) Adversary Case No.: 6:20-ap-01083- MH, John Pringle vs. Manal Tadrous (Sued As Manal Eskarous) Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure; Request for Payment of Contingency Fee; Memorandum of Points And Authorities, Declarations of David M. Goodrich and John P. Pringle in Support Thereof (with Proof of Service) (Goodrich, David)
EH
11:00 AM
(Tele. appr. David Goodrich, chapter 7 trustee)
(Tele. appr. Michael Wallin, rep. creditor, Boles Bishay)
Docket 277
- 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
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Amgad Bebawy Represented By Michael A Corfield
Reham Nakhil Represented By
11:00 AM
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 Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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: 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ramez Ghaly Pro Se
Joint Debtor(s):
Bernadette Shenouda Represented By
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
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
11:00 AM
Adv#: 6:20-01087 Pringle v. Zumut et al
From: 7/27/20, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle) (Tele. appr. Lawrence Hoodack, rep. Defendants)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Ray Zumut Represented By
Lawrence Hoodack
Mary Zumut Represented By
Lawrence Hoodack
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
Adv#: 6:20-01126 Pringle v. Botors
From: 9/30/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
Adv#: 6:20-01127 Pringle v. Awad
(HOLDING DATE)
From 9/30/20,1/13/21, 3/17/21,4/12/21,6/21/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
Adv#: 6:20-01127 Pringle v. Awad
Also #25
From: 11/30/20,2/1/21,4/12/21,6/21/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
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
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/23/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,2/1/21, 4/12/21, 6/21/21 EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle) (Tele. appr. Louis Esbin, rep. Defenant, Rafat Gerges)
Docket 1
- NONE LISTED -
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
11:00 AM
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
11:00 AM
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, 9/28/20,11/30/20, 2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Kaiwha Peng Represented By
Michael A Wallin
11:00 AM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
11:00 AM
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, 9/28/20,11/30/20,2/1/21,4/12/21,6/21/21
EH
(Tele. appr. David Goodrich, rep. Plaintiff, John Pringle)
Docket 1
- NONE LISTED -
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
11:00 AM
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#: 6:21-01061 Walls v. EDUCAP, INC.
M. Walls against EDUCAP, INC.. ($350.00 Fee Not Required). Complaint to Determine Dischargeability of Debt of Student Loan Nature of Suit: (63 (Dischargeability - 523(a)(8), student loan))
EH
Docket 1
- NONE LISTED -
Debtor(s):
Sinqua M. Walls Represented By Jasmine Firooz
Defendant(s):
EDUCAP, INC. Represented By Kelly Ann M Tran
Plaintiff(s):
Sinqua M. Walls Represented By David Brian Lally
Trustee(s):
Sandra L Bendon (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, 4/1/20, 4/15/20, 7/1/20, 7/29/20, 10/7/20, 10/14/20,12/2/20,
3/31/21,6/30/21
EH
(Tele. appr. Robert Goe, rep. Defendant, Vance Johnson) (Tele. appr. Todd Turoci, rep. Plaintiff)
(Tele. appr. Melissa Hayward, rep. Bankers Healthcare Group, LLC)
Docket 1
4/15/20
TENTATIVE RULING
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
2:00 PM
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
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#: 6:21-01021 STEVEN M. SPEIER, solely in his capacity as Chapte v. Baer et al
W. Baer, Kimberly A Baer, Laura Losquardo, HBall Properties, LLC. ($350.00 Fee Charge To Estate). Complaint: 1. To Avoid And Recover Preferential Transfers Pursuant to 11 U.S.C. §§ 547 AND 550; 2. To Avoid And Recover Fraudulent Transfers Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(A), AND 550, AND CALIFORNIA CIVIL CODE §§ 3439.04(a)(1); 3. To Avoid And Recover Fraudulent Transfers Pursuant to 11 U.S.C. §§ 544(b), 548(a)(1)(B) AND 550, and California Civil Code §§ 3439.04(a)(2) and 3439.05; 4. To Recover and Preserve Transfers For The Benefit Of The Estate Pursuant to 11 U.S.C. § 551;
5. To Recover Fraudulent Transfers Pursuant to 11 U.S.C. § 550(a); and 6. Breach Of Fiduciary Duty Nature of Suit: (12 (Recovery of money/property - 547 preference)),(13 (Recovery of money/property - 548 fraudulent transfer)) (Goe, Robert)
From: 4/28/21 EH
(Tele. appr. Louis Esbin, rep. Defendants, for Harold W. Baer, Kimberly A. Baer, Laura Losquadro and HBall Properties, LLC)
(Tele. appr. Robert Goe, rep. Plaintiff, Steven Speier)
Docket 1
- NONE LISTED -
2:00 PM
Debtor(s):
Daisy Wheel Ribbon Co., Inc. Represented By Louis J Esbin
Defendant(s):
Harold W. Baer Represented By Louis J Esbin
Kimberly A Baer Represented By Louis J Esbin
Laura Losquadro Represented By Louis J Esbin
HBall Properties, LLC Represented By Louis J Esbin
Plaintiff(s):
STEVEN M. SPEIER, solely in his Represented By
Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
2:00 PM
Adv#: 6:20-01103 Pavon-Arita v. Noble et al
(HOLDING DATE)
From: 7/22/20,1/13/21, 3/17/21,6/23/21 EH
(Tele. appr. Todd Turoci, rep. Defendants)
Docket 1
- NONE LISTED -
Debtor(s):
Phillip Carl Noble Represented By Todd L Turoci
Defendant(s):
Juana Julian Noble Represented By Todd L Turoci
Phillip Carl Noble Represented By Todd L Turoci
2:00 PM
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
Adv#: 6:20-01112 Cruz v. Cruz
Complaint by Patricia Marlen Cruz against Ronald V. Cruz. 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)),(64 (Dischargeability - 523(a)(15), divorce/sep property settlement/decree)),(91 (Declaratory judgment)) filed by Plaintiff Patricia Marlen Cruz). (Brownstein, William)
From: 8/19/20,2/17/21,6/23/21 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
2:00 PM
Trustee(s):
Charles W Daff (TR) Pro Se
2:00 PM
Adv#: 6:21-01072 Canyon Lake Investments, LLC v. Kinion et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Douglas Kinion Represented By
Robert K McKernan
Defendant(s):
Douglas Kinion Pro Se
Shawn Kinion Pro Se
Joint Debtor(s):
Shawn Kinion Represented By
Robert K McKernan
Plaintiff(s):
Canyon Lake Investments, LLC Represented By
Stuart G Steingraber
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:21-01058 Logix Federal Credit Union v. Soto, Jr
EH
Docket 1
- NONE LISTED -
Debtor(s):
John Molina Soto Jr Represented By Qais Zafari
Defendant(s):
John Molina Soto Jr Pro Se
Plaintiff(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
Adv#: 6:21-01042 Red Rock Minerals LP et al v. Parker
Also #42-43 EH
(Tele. appr. Luke Hendrix, rep. Defendant)
Docket 1
- NONE LISTED -
Debtor(s):
Bruce A. Parker Represented By Lazaro E Fernandez
Defendant(s):
Bruce A. Parker Represented By
J. Luke Hendrix
Plaintiff(s):
Red Rock Minerals LP Pro Se
Paul K Singh Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:21-01042 Red Rock Minerals LP et al v. Parker
From: 6/9/21 Also #41,43 EH
(Tele. appr. Luke Hendrix, rep. Defendant)
Docket 6
- NONE LISTED -
Debtor(s):
Bruce A. Parker Represented By Lazaro E Fernandez
Defendant(s):
Bruce A. Parker Represented By
J. Luke Hendrix
Movant(s):
Bruce A. Parker Represented By
J. Luke Hendrix
Plaintiff(s):
Red Rock Minerals LP Pro Se
Paul K Singh Pro Se
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:21-01042 Red Rock Minerals LP et al v. Parker
From: 6/9/21 Also # 41-42 EH
(Tele. appr. Luke Hendrix, rep. Defendant)
Docket 1
- NONE LISTED -
Debtor(s):
Bruce A. Parker Represented By Lazaro E Fernandez
Defendant(s):
Bruce A. Parker Represented By
J. Luke Hendrix
Plaintiff(s):
Red Rock Minerals LP Pro Se
Paul K Singh Pro Se
2:00 PM
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 98
7/22/2021
In the instant motion [Dkt. No. 104], filed May 10, 2021, Trustee seeks to dismiss Case 6:16-bk-11309 filed under Chapter 13 by Aurelio Palma ("Debtor") with an order denying discharge.
Although Debtor has completed all the plan payments designated to be paid through the Trustee, Debtor has defaulted on the direct mortgage payments to Deutsche Bank ("Lender"). In its response to Trustee’s notice of final cure payment, Lender asserts that Debtor is $22,375.35 in post-petition arrears. [Dkt. No. 104, Attachment 1].
As a preliminary matter, the Court does not formally "deny" a discharge for failure to make payments. Rather, if Debtor has not satisfied the requirements for receiving a discharge, the Court would dismiss the case rather than enter a discharge. Therefore, the Court will construe Trustee’s motion as a request to dismiss the case under 11
U.S.C. § 1307.
Here, Debtor has materially defaulted under the terms of the plan by failing to make direct mortgage payments. Therefore, it is proper for the Court to dismiss the case.
11:00 AM
Notice appearing proper, good cause appearing, and no opposition having been filed, the Court is inclined to GRANT the motion to the extent of dismissing the case.
APPEARANCES REQUIRED.
Debtor(s):
Aurelio Palma Represented By Stephen S Smyth William J Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 69
- NONE LISTED -
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
- NONE LISTED -
Debtor(s):
Jose Luis Vallejo Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also # 4-5 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Brandon Iskander, rep. Todd Frealy, former chapter 7 trustee) (Tele. appr. Todd Frealy, chapter 7 trustee)
Docket 59
- NONE LISTED -
Debtor(s):
Anna M Gonzales Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #3,5 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
(Tele. appr. Brandon Iskander, rep. Todd Frealy, former chapter 7 trustee)
Docket 55
- NONE LISTED -
Debtor(s):
Anna M Gonzales Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #4-5 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor, Anna Gonzales)
(Tele. appr. Brandon Iskander, rep. Todd Frealy, former chapter 7 trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Anna M Gonzales Represented By Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Edwina Brewer Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Susan Schroeder Represented By Anthony P Cara
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Aaron Lloyd, rep. Debtor)
Docket 0
- NONE LISTED -
Debtor(s):
Kathleen A Lander Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Angel Ortega Represented By
Jaime A Cuevas Jr.
Joint Debtor(s):
Rosa Arias Represented By
Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 0
- NONE LISTED -
Debtor(s):
Victoria Leangela Hare Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Sundee Teeple, rep. Debtor, Carol Smith)
Docket 0
- NONE LISTED -
Debtor(s):
Carol Smith Represented By
Sundee M Teeple
Joint Debtor(s):
Jim Smith Jr. Represented By
Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 173
- NONE LISTED -
Debtor(s):
John D Castro Jr Represented By Chris A Mullen
Joint Debtor(s):
Jennifer Manda Castro Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 101
- NONE LISTED -
Debtor(s):
Jose Alberto Lara-Pena Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Yanisleidy Sanchez-Quinonez Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 116
- 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
EH
Docket 46
- NONE LISTED -
Debtor(s):
Jamar A Earnest Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Michael Smith, rep. Debtor)
Docket 27
- NONE LISTED -
Debtor(s):
Doreen M. Coronado Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
EH
Docket 68
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
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, 9/28/20,11/30/20,2/1/21 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
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#: 6:20-01083 Pringle v. Eskarous
EH
Docket 17
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous 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 Reem J Bello
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
*Alias summoms issued on 3/3/21 for defendant Veronica Hutchinson
*Second amended complaint filed 6/2/21 Also #
From: 3/31/21,5/5/21 EH
Docket 1
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Veronica Aurora Hutchinson Pro Se
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Plaintiff(s):
Matthew Cotter Represented By
2:00 PM
R Gibson Pagter Jr.
Courtney Cotter Represented By
R Gibson Pagter Jr.
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01066 Maddox v. Ramas, III et al
EH
Docket 1
Debtor(s):
Sotero Chandler Elias Ramas III Represented By
Ruben Salazar Anna Landa
Defendant(s):
Sotero Chandler Elias Ramas III Pro Se
Harvy Yojany Ortiz Campo Pro Se
Joint Debtor(s):
Harvy Yojany Ortiz Campo Represented By Ruben Salazar Anna Landa
Plaintiff(s):
Farideh Maddox Represented By Morris Nazarian
Trustee(s):
Todd A. Frealy (TR) Represented By Anna Landa
2:00 PM
From: 5/25/21 EH
Docket 5
Debtor(s):
Steven D Johns Represented By Summer M Shaw
2:00 PM
Adv#: 6:21-01069 Skeffington et al v. Buckner
EH
Docket 1
Debtor(s):
Brent Anthony Buckner Represented By Michael R Totaro
Defendant(s):
Brent Anthony Buckner Pro Se
Plaintiff(s):
William Skeffington Represented By
J Scott Williams
Laurie Skeffington Represented By
J Scott Williams
Trustee(s):
Larry D Simons (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jenny Doling, rep. Debtors)
Docket 268
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 57
Debtor(s):
Catherine L Mires Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
John Enrique Deir Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 197
Debtor(s):
Roger C Jefferson Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Warren Thomas Derry Represented By Christopher C Barsness
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 123
Debtor(s):
Elliott Howard Blue Jr Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Yvette Blue Represented By
Michael E Clark Barry E Borowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Charlotte N Apacible Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
EH
Docket 98
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Russ Stong, rep. Debtor]
Docket 73
Debtor(s):
Mary Jones Represented By
Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 72
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 95
Debtor(s):
Michele Helen Murillo Represented By Joshua R Driskell
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 133
Debtor(s):
Fonda Cormier Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 135
Debtor(s):
Sandra M. Hankins Represented By Michael Smith Craig K Streed Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Judith A. Conroy Represented By Michael Smith Sundee M Teeple
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Adriana T. Cobian Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 52
Debtor(s):
Steven Leimel Represented By Paul Y Lee
Joint Debtor(s):
Adela Leimel Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 65
Debtor(s):
Felipe Morales Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. John Brady, rep. Debors]
Docket 239
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 90
Debtor(s):
Luis A Jovel Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Ramiro Munoz, rep. Debtor]
Docket 78
Debtor(s):
Liliana Martinez Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 43
Debtor(s):
Mark R. Smith Represented By Joselina L Medrano
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Gouveia, rep. Debtor]
Docket 72
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 119
Debtor(s):
Sadia Sohail Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 58
Debtor(s):
Gail Katherine Stump Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
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 91
Debtor(s):
Guillermina Perez Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 156
Debtor(s):
Annette Leshon Rudd Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 91
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 65
Debtor(s):
Terry Neil Gaia Represented By Edward G Topolski
Joint Debtor(s):
Tamara Marie Devalle-Gaia Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 83
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
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 85
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 132
Debtor(s):
Patricia Morales Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 71
Debtor(s):
Roman Negrete Manrriquez Represented By Patricia A Mireles
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 44
Debtor(s):
Roger C. Rosal Represented By William E Windham
Joint Debtor(s):
Rosalinda N. Rosal Represented By William E Windham
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 59
Debtor(s):
Carolyn Maxine Bodden Represented By Edward G Topolski
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 106
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 80
Debtor(s):
Marian Amelia Pagano Represented By Frank J Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 83
Debtor(s):
Nereeka Tamar Haynes Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 78
Debtor(s):
Luis Fuentes Moreno Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
Debtor(s):
Darlene J. Wadler Represented By Michael Jay Berger
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Rebecca Tomilowitz, rep. Debtors]
Docket 81
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 117
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 56
Debtor(s):
Janelle A. Kline Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor)
Docket 115
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 103
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 69
Debtor(s):
Maggie Ruth Thomas Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
Debtor(s):
Ridley R. Molders Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
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
Docket 48
Debtor(s):
Incha K Lockhart Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Brianne Lucinda Pituley Represented By Steven A Alpert
Joint Debtor(s):
Michele Diana Niehe Sharik Pituley Represented By
Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Shannon Williams Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 98
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 65
Debtor(s):
Tanisha S. Santee Represented By Keith Q Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Robert J Martin Represented By Paul Y Lee
Joint Debtor(s):
Amanda J Martin Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 88
Debtor(s):
Gabriel Cruz Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 120
Debtor(s):
Daniel Javier Garcia Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. John Brady, rep. Debors]
Docket 155
Debtor(s):
Patricia Ellen Bond-Gomez Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 61
Debtor(s):
DeBora Debbie Walker Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 54
Debtor(s):
Erika Lynn Pruitt Represented By
Raj T Wadhwani
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
Debtor(s):
Susan Louise Marquez Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Seema Sood, rep. Debtor]
Docket 119
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Jennifer Lee Minkalis Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 83
Debtor(s):
Sheila Rosales Manabat Represented By John A Varley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 95
Debtor(s):
Reynaldo Perez Represented By Paul Y Lee
Joint Debtor(s):
Gatziry Zeledon Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 80
Debtor(s):
John R Saxton Represented By Andy C Warshaw
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 48
Debtor(s):
Daniel Porche Represented By Dana Travis
Joint Debtor(s):
Leta Lorraine Porche Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 90
Debtor(s):
Alexander J Perfinowicz Pro Se
Joint Debtor(s):
Ingeborg Maria Pefinowicz Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 54
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 50
Debtor(s):
Diana Marie Perrone Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 53
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 28
Debtor(s):
Buckleigh Xavier Pruitt Represented By Nicholas M Wajda
Joint Debtor(s):
Donna Lee Pruitt Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 87
Debtor(s):
Erica Raquel Zavaleta Represented By William J Smyth Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. John Brady, rep. Debors]
Docket 109
Debtor(s):
Maisha Lenette Ghant-Elie Represented By John F Brady
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Jason Leroy Albaugh Represented By Gregory M Shanfeld
Joint Debtor(s):
Jamie Lean Albaugh Represented By Gregory M Shanfeld
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor)
Docket 70
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 90
Debtor(s):
Nadia Michelle Lipscomb Represented By Benjamin R Heston
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 65
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 39
Debtor(s):
Hassan Mohamad Adib Yahya Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 49
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 87
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 55
Debtor(s):
Ramon Leo Delgado Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 51
Debtor(s):
Luis Enrique Chavez Represented By Giovanni Orantes
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) Tele. appr. Russ Stong, rep. Debtor]
Docket 51
Debtor(s):
Cesar Armando Carrillo Represented By Matthew D. Resnik
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 84
Debtor(s):
Tamra Gillian Rehak Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 66
Debtor(s):
Michael Ray Sandoval Represented By Jaime A Cuevas Jr.
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 43
Debtor(s):
Vernita Goodwin Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 117
Debtor(s):
Trinen Arniese Pratt Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 64
Debtor(s):
Phonmany Phengphavong Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 68
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 44
Debtor(s):
Jason A Hightower Represented By Donald J Gagnon III
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 62
Debtor(s):
La Chatta P Hunter Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 51
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 53
Debtor(s):
Frank Rubin Carrillo Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 43
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 71
Debtor(s):
Kenyaita Denise Washington Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 111
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 65
Debtor(s):
June A. Bitanga Represented By Gregory Ashcraft
Joint Debtor(s):
Maria Teresita A Bitanga Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 51
Debtor(s):
Sara Rolston Represented By
Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Maria Elly Lotz Represented By Kevin Cortright
Joint Debtor(s):
Steven Lotz Represented By
Kevin Cortright
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 92
Debtor(s):
Cesar Orozco Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 73
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 25
Debtor(s):
Christina D. Cochran Represented By Gregory Ashcraft
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 45
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 29
Debtor(s):
Carlos A Martinez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 44
Debtor(s):
Mark David Dixon Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Seema Sood, rep. Debtor]
Docket 68
Debtor(s):
Paul Edward Young Jr. Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor)
Docket 125
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 52
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) Tele. appr. Russ Stong, rep. Debtors]
Docket 54
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 52
Debtor(s):
Nicholas A. Asamoa Represented By Stephen S Smyth
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 69
Debtor(s):
Sandraea La 'Jean Plummer Represented By Cynthia A Dunning
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 40
Debtor(s):
Jihad Jundi Represented By
Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 37
Debtor(s):
Randolph Thomas Lascurain Represented By Christopher J Langley
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
Debtor(s):
Josephina Lopez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 38
Debtor(s):
Jaqueline Aguilar-Ramos Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Kevin Tang, rep. Debtors]
Docket 78
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 47
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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Chris Mullen, rep. Debtor]
Docket 62
Debtor(s):
Priscilla Fernandez Richardson Represented By Chris A Mullen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Todd Turoci, rep. Debtor]
Docket 75
Debtor(s):
Dennis Gene Rankin Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 50
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 40
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 37
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 40
Debtor(s):
Fiji Simmons Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 66
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 33
Debtor(s):
Lawrence Mitchell Jr. Represented By Kevin Tang
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 47
Debtor(s):
Christopher Arriaga Represented By Amanda G. Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 32
Debtor(s):
Amparo Alejo Mercado Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 45
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 43
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
1:00 PM
Docket 49
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 64
Debtor(s):
Corey Jason Gomes Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
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
1:00 PM
Docket 32
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
1:00 PM
Docket 34
Debtor(s):
Michele Marie Ruggieri Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Lorane L Luna Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 38
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
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 102
Debtor(s):
Michelle Cadena Quinn Represented By Steven A Alpert
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Jason Boyer, rep. Debtors]
Docket 68
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
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 58
Debtor(s):
Claudia P. Contreras Represented By Daniel C Sever
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 36
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
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Rebecca Tomilowitz, rep. Debtors]
Docket 74
Debtor(s):
Angelita Kurmen Represented By Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor)
Docket 36
Debtor(s):
Annette S. Cofer Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Mary Therese Conley Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
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
1:00 PM
Docket 51
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
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 39
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
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 52
Debtor(s):
Gregory Scott Richman Represented By Jeffrey J Hagen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 50
Debtor(s):
Robert Lee Thomas, Sr. Represented By Suzette Douglas
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 23
Debtor(s):
Sheila Bocala Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 39
Debtor(s):
Michelle Giralao Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
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
1:00 PM
Docket 43
Debtor(s):
Manuel Monroy Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 33
Debtor(s):
Yvette Deneese Kearns Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 60
Debtor(s):
Michael J. Slowinski Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 37
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
1:00 PM
Docket 28
Debtor(s):
Jose Rodriguez Represented By Andy Nguyen
Joint Debtor(s):
Celine Rodriguez Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 31
Debtor(s):
Fred Sachs Represented By
Krystina T Tran
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 37
Debtor(s):
Alexandria Dacanay Calunsod Represented By
Hasmik Jasmine Papian
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 30
Debtor(s):
Ronald Eugene Day Represented By Brad Weil
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 23
Debtor(s):
Wilfred Banawa Represented By Christopher Hewitt
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Kent D. Moore Represented By Terrence Fantauzzi
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 35
Debtor(s):
Shawn Hawkins Cole Represented By Timothy S Huyck
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 59
Debtor(s):
Eusebia Rios Represented By
Rebecca Tomilowitz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 113
Debtor(s):
Rafael Gonzalez Represented By Henry D Paloci
Joint Debtor(s):
Sonia Cardenas Represented By Henry D Paloci
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 42
Debtor(s):
Gabrielle Mendoza Represented By Michael E Clark
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 29
Debtor(s):
Stephanie Marie Encinas Represented By Brian J Soo-Hoo
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 34
Debtor(s):
Martin Sanchez-Flores Represented By Andy Nguyen
Joint Debtor(s):
Pamela Sanchez Represented By Andy Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 76
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 172
Debtor(s):
Rick Gaeta Carreon Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
1:00 PM
Docket 73
Debtor(s):
Alfredo Navas Represented By Sunita N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 5/25/21,6/22/21
MOVANT: MEB LOAN TRUST IV
EH
Docket 53
- NONE LISTED -
Debtor(s):
William Edward Walker Represented By Jenny L Doling
Joint Debtor(s):
Carla Sue Walker Represented By Jenny L Doling
Movant(s):
MEB Loan Trust IV Represented By Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21, 6/8/21
(Case converted to chapter 7 on 3/30/21)
MOVANT: NEWREZ LLC d/ba SHELLPOINT MORTGAGE SERVICING
EH
Docket 45
- NONE LISTED -
Debtor(s):
Michael L. Williams Represented By Gregory Ashcraft
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Alexander G Meissner Julian T Cotton
Mary D Vitartas Dane W Exnowski
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
From: 4/20/21,5/25/21,7/6/21 MOVANT: NEWREZ LLC
EH
[Tele. appr. Fritz Firman, rep. Debtors]
[Tele. appr. Kristin Zilberstein, rep. creditor, NewRez LLC]
Docket 59
Given the evidence submitted by Debtors that Movant granted Debtors a COVID-19 related forbearance for the payments in question, the Court is inclined to DENY the motion for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
11:00 AM
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Eric P Enciso
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: PINGORA LOAN SERVICING, LLC
EH
[Tele. appr. Kelli Brown, rep. creditor, Pingora Loan Servicing]
Docket 45
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of adequate protection discussions. APPEARANCES REQUIRED.
Debtor(s):
Jaqueline Aguilar-Ramos Represented By
Ramiro Flores Munoz
Movant(s):
Pingora Loan Servicing, LLC Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 6/22/21,7/20/21
MOVANT: SCHOOLSFIRST FEDERAL CREDIT UNION
EH
[Tele. appr. Summar Shaw, rep. Debtor]
[Tele. appr. Adam Thursby, rep. creditor, SchoolsFirst Federal Credit Union)
Docket 44
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed four mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 4001(a)(3) stay;
-GRANT request under ¶ 12;
Movant to include in the proposed order a provision providing that: "In granting relief from stay the Court does not rule on the applicability of any pandemic-related
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moratoriums."
APPEARANCES WAIVED. 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 Odinni Lawrence Represented By Summer M Shaw
Joint Debtor(s):
Vonetta Isioma Lawrence Represented By Summer M Shaw
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/20/21
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 103
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BROKER SOLUTIONS, INC.
EH
[Tele. appr. Kelli Brown, rep. creditor, Broker Solutions, Inc.]
Docket 38
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-WAIVE Rule 4001(a)(3) stay;
-GRANT requests under ¶¶ 2 and 3;
-DENY alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
APPEARANCES WAIVED. Movant to lodge order within seven days. If oral or written opposition is presented at the hearing, the hearing may be continued.
Debtor(s):
Perry A Covello Represented By
Gary S Saunders - SUSPENDED -
11:00 AM
Joint Debtor(s):
Tia Lia Covello Represented By
Gary S Saunders - SUSPENDED -
Movant(s):
Broker Solutions, Inc. dba New Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT : WELLS FARGO BANK
EH
[Tele. appr. Jenelle Arnold, rep. creditor, Wells Fargo Bank]
Docket 42
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-WAIVE 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):
Sotero Chandler Elias Ramas III Represented By
Walter Scott
Joint Debtor(s):
Harvy Yojany Ortiz Campo Represented By Walter Scott
11:00 AM
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Todd A. Frealy (TR) Represented By Anna Landa
11:00 AM
From: 6/8/21,7/6/21 MOVANT: CAM XI TRUST
EH
[Tele. appr. Reilly Wilkinson, rep. creditor CAM XI TRUST]
Docket 24
Service appears proper. No opposition.
BACKGROUND
Movant is the beneficiary of a recorded Deed of Trust on the Property in question. In February 2021, Movant was informed of the unauthorized transfer of the Property dated to March 12, 2020 to a party in a separate bankruptcy (case number 2:21-
bk-11377-WB). This transfer was allegedly executed by the original borrower, Onie Devaughn-James, who died in September 17, 2017. In the prior bankruptcy case, Movant filed a motion for relief from the prior automatic stay, requesting in rem relief, which was granted on March 19, 2021. Movant did not record the in rem order until March 22, 2021, shortly after the foreclosure sale of the Property.
On March 22, 2021, just before the foreclosure sale of the Property occurred and prior to the recording of the in rem order, Movant was informed of another unauthorized transfer of the Property on October 16, 2020, again by the deceased original borrower.
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The Debtor is not the borrower on the Property and did not list the Property in his schedules.
Although Movant knew the bankruptcy case had been filed, Movant proceeded with the foreclosure sale on March 22, 2021 and the property reverted to the Lender.
Because the Debtor’s petition for Chapter 13 Bankruptcy was filed before the foreclosure sale, the stay was in place and the foreclosure sale was void.
Movant now seeks an annulment of the stay to validate the March 22, 2021 foreclosure sale and a waiver of the 14 day stay prescribed by FRBP 4001(a)(3). If an annulment is not granted, the Movant requests relief pursuant to 11 U.S.C. § 362(d) (1), (4) and 11 U.S.C. § 1301(a) for relief from the new stay on the Property.
Movant argues that a retroactive annulment of the stay is justified due to the original borrower’s repeated bad-faith and unauthorized transfers of the Property.
DISCUSSION
1. Movant’s Request for Retroactive Annulment of Stay
11 U.S.C. § 362(d)(1) sets forth the grounds for relief from stay. It provides that:
". . . 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—
or cause, including the lack of adequate protection of an interest in property of such party in interest."
A bankruptcy court’s authority to make exceptions to a stay "includes annulment providing retroactive relief, which, if granted, moots any issue as to whether the violating sale was void." In re Fjeldsted, 293 B.R. 12, 21 (B.A.P. 9th Cir. 2003). The
B.A.P. in Fjeldsted set out the following twelve factors in determining whether a court should annul the automatic stay retroactively:
Number of filings;
Whether, in a repeat filing case, the circumstances indicate an intention to
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delay and hinder creditors;
Id.
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;
The Debtor's overall good faith (totality of circumstances test);
Whether creditors knew of stay but nonetheless took action, thus compounding the problem;
Whether the debtor has complied, and is otherwise complying, with the Bankruptcy Code and Rules;
The relative ease of restoring parties to the status quo ante;
The costs of annulment to debtors and creditors;
How quickly creditors moved for annulment, or how quickly debtors moved to set aside the sale or violative conduct;
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;
Whether annulment of the stay will cause irreparable injury to the debtor;
Whether stay relief will promote judicial economy or other efficiencies."
Id. At 25 (citations omitted).
Fjeldsted cautioned that these factors are "merely a framework for analysis and not a scorecard," but that any one factor "may so outweigh the others as to be dispositive." Id. at 32.
Here, the major issue involves factor #5. Movant knew that Debtor had filed for bankruptcy and that the Property had been transferred to the Debtor. Movant’s in rem order had no effect, as it was not recorded at the time of the sale. Nevertheless, the Movant proceeded with the foreclosure sale despite the stay being in place. This shows a lack of good faith on the part of the Movant and an action that compounded the problem. Further, under factor #9, this issue arose due to Movant not swiftly recording its in rem order before the foreclosure sale.
Movant’s actions, in fact, constituted a "willful" violation of the automatic stay. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (a stay
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violation is "willful" if the party knew of the stay); Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 589 (9th Cir. B.A.P. 1995) (knowledge of the bankruptcy filing is legal equivalent of knowledge of the automatic stay).
However, as the Ninth Circuit ruled in both In re Glaser, 1995 U.S. App. LEXIS 12268 (1995), a willful violation of a stay does not prevent a court from retroactively validating a foreclosure sale. In Glaser, the Ninth Circuit explained that:
Section 362(d) permits the court, in annulling a stay, to validate retroactively actions taken by a party that would otherwise be in violation of the stay. (citing to In re Schwartz, 954 F.2d 569, 573 (9th Cir. Ct. App. 1992) ("section
362(d) gives the [bankruptcy] court the power to ratify
retroactively any violation of the automatic stay which would otherwise be void."). This power exists whether the creditor acts at a time when he is unaware of the stay, 2 Collier on Bankruptcy P362.07 (1994), or proceeds with a foreclosure sale when he has actual knowledge of the stay. (citing to Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1422-25 (9th Cir. 1985)).
Glaser, 1995 U.S. App. LEXIS 12268.
Similar to the present facts, in Glaser, the debtor provided evidence that the creditor proceeded with a foreclosure sale despite knowledge of the bankruptcy filing. Id.
However, the Ninth Circuit ruled that "bankruptcy court[s] can validate the foreclosure sale regardless of [creditor’s] knowledge of [debtor’s] April 14 petition." Id. More recently, the panel in In re Oya, 2019 Bankr. LEXIS 3303, 14 (9th Cir.
B.A.P. 2019) reaffirmed that "the creditor’s knowledge is just one factor to consider in weighing the equities of the case."
While Movant’s knowledge of the bankruptcy filing goes against it, in sum, the "balancing of equities" tips toward granting the Movant an annulment to validate the foreclosure sale. Under Fjeldsted factors #1 and #2, the original borrower’s repeated unauthorized transfers within a month indicate a clear intention and scheme to delay and hinder the Movant. The scheme at hand is also clearly done in bad faith as the alleged executor of the unauthorized transfers has been deceased since 2017. Further, under #11, it appears that the Debtor will not be adversely affected in any way, as the Property was not in the Debtor’s schedules. Per #7, granting an annulment would also
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allow parties to return to the status quo ante relatively easily, as Debtor would be able to continue unperturbed with his bankruptcy proceeding and Movant could validate the already completed foreclosure sale. Lastly, under #3 and #12, if the stay is not annulled, Movant likely would have to unwind the sale and would provide the people behind the scheme with more opportunities to repeat their fraudulent activities, leading to more bankruptcy proceedings.
However, the Court is concerned that the evidence in support of Movant’s knowledge of the bankruptcy filing and decision to foreclose is vague as to who made the decision, who believed the unrecorded in rem order was effective, and the timing of the notice and decision.
APPEARANCES REQUIRED.
Debtor(s):
Amparo De Leon Represented By Julie J Villalobos
Movant(s):
CAM XI TRUST, its successors Represented By Reilly D Wilkinson
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: ACAR LEASING LTD
EH
[Tele. appr. Sheryl Ith, rep. creditor ACAR Leasing Ltd.]
Docket 29
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-WAIVE 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):
Alicia Cabello Represented By Andy Nguyen
Movant(s):
ACAR Leasing LTD d/b/a GM Represented By
11:00 AM
Trustee(s):
Sheryl K Ith
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
[Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit)
Docket 10
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (2);
-WAIVE 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):
John Athy Pope Represented By Kristin R Lamar
Joint Debtor(s):
Irmina Lizette Pope Represented By
11:00 AM
Movant(s):
Kristin R Lamar
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
Also #13
(Case Dismissed 7/19/21)
MOVANT: WILMINGTON SAVINGS FUND SOCIETY
EH
[Tele. appr. Nancy Lee, rep. creditor, Wilmington Savings)
Docket 12
Due to the dismissal of the subject bankruptcy case on July 19, 2021, the automatic stay has terminated as a matter of law.
Therefore, the Court is inclined to:
-DENY the requests under ¶¶ 2, 3, and 6 as MOOT
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(4) based upon seven dismissed Chapter 13 filings since Movant recorded its notice of default, including three pro se, summarily dismissed Chapter 13 filings since April 2021
-GRANT request under ¶ 14 based upon seven dismissed Chapter 13 filings since Movant recorded its notice of default, including three pro se, summarily dismissed Chapter 13 filings since April 2021
-WAIVE Rule 4001(a)(3) stay;
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-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-GRANT request under ¶ 10;
-GRANT request under ¶ 12;
-DENY requests under ¶¶ 8 and 11 for lack of cause shown. Specifically, Movant has not provided a writ of possession or other evidence establishing its right to immediate possession of the subject real property. Regarding ¶ 11, the Court only grants that request in extraordinarily egregious situations.
APPEARANCES REQUIRED.
Debtor(s):
Cheryl Linda Fernandez Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #12
(Case Dismissed 7/19/21)
MOVANT: US BANK TRUST NATIONAL ASSOCIATION
EH
Docket 15
- NONE LISTED -
Debtor(s):
Cheryl Linda Fernandez Pro Se
Movant(s):
U.S. Bank Trust National Represented By Sean C Ferry
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
Also #15 EH
(Tele. appr. William Beall, rep. Barstow Daluvoy First Mortgage Investors, LP)
[Tele. appr. Donald Reid, rep. Debtor in possession and Reza Safaie, proposed buyer]
Docket 97
On December 8, 2020, Raman Enterprises LLC ("Debtor") filed a Chapter 11 voluntary petition. Among the scheduled assets was a parcel of raw land located in Barstow, California (the "Property"). Schedule A identified the value of the Property as $1,950,000. Schedule D identified three creditors holding a security interest in the Property: (1) Santa Barbara Commercial Mortgage (in the amount of $761,099); (2) Arvin Doshi (in an unknown amount)1 and (3) the San Bernardino County Tax
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Collector (in the amount of $17,631.66)2.
On January 14, 2021, Debtor filed an application to employ a real estate broker; RE/MAX was approved as broker pursuant to order entered February 5, 2021.
On April 20, 2021, Barstow Daluvoy Project Lenders LP filed a motion for relief from stay as to the Property. On May 11, 2021, Debtor filed an opposition. At a hearing held on May 25, 2021, the Court indicated that it was inclined to order relief from stay, but continued the matter for: (a) Debtor to file a supplemental brief; and (b) Debtor to continue marketing the Property. After a continued hearing on June 22, 2021, the Court continued the matter again, for further marketing efforts and for the parties to discuss an agreement. At the third hearing, on July 6, 2021, the Court granted the motion, delaying the effectiveness of the order, entered July 12, 2021, until October 6, 2021.
On July 20, 2021, Debtor filed the instant sale motion. Debtor proposes to sell the Property to Yucca Valley Property, LLC (the "Purchaser") for $1,050,000. Proposed payments from the proceeds include: (1) $47,250 for broker’s commission3; (2)
$15,750 for costs of sale; (3) $17,580.52 for property taxes; and (4) $784,485.31 for Barstow Daluvoy First Mortgage Investors, LP. This distribution leaves $184,934.43 for the estate. The motion does not propose to pay the liens of American Lending, Inc. and The Doshi Family Trust, for the reasons set forth in the discussion section.
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
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Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
While the motion asserts that the Property was marketed for more than five months, the evidence presented in support of the motion is lacking in any description of the marketing. The Court also notes that the unsigned declaration of the managing member of the Purchaser indicates that the Purchaser has personally known the managing member of the Debtor for several years and has previously discussed purchasing the Property. Finally, the Court notes that the Property is being sold for
$900k less than its scheduled value.
While not directly relevant to the Court’s analysis under § 363(b), the Court notes that page 8, lines 12-13 of the instant motion state that "Debtor intends to distribute the Net Sales Proceeds pursuant to the distribution schemes in the Bankruptcy Code." It is not clear what Debtor means by this statement.
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;
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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, Debtor is requesting that the sale be free and clear of the liens of: (i) the County of San Bernardino; (ii) Barstow Daluvoy First Mortgage Investors, LP; (iii) American Lending, Inc.; and (iv) The Doshi Family Trust. Regarding (i) and (ii), Debtor states the sale proceeds are sufficient to satisfy the liens in full, and, therefore, the sale can be approved free and clear of those liens pursuant to § 363(f)(1) and (5).
Regarding the liens of American Lending, Inc. and The Doshi Family Trust, Debtor contends that § 363(f)(4) is applicable because those liens are subject to a bona fide dispute. Importantly, Debtor does not present any analysis or evidence whatsoever regarding this bona fide dispute, nor does Debtor request the Court to take judicial notice of the complaint. Assuming, arguendo, the Debtor include the complaint in the record, Debtor must show that there is an "objective basis for either a factual or legal dispute as to the validity of the debt." See In re Gaylord Grain L.L.C., 306 B.R. 624, 627 (B.A.P. 8th Cir. 2004) (quoting In re Busick, 831 F.2d 745, 750 (7th Cir. 1987).
Here, the complaint filed by Debtor alleges that the granting of deeds of trust to American Lending, Inc. and The Doshi Family Trust constitute constructively fraudulent transfers because Debtor did not receive any value in exchange. While Debtor concedes that Debtor was a borrower in the underlying loan documents, Debtor asserts that Debtor’s managing member, Dr. Daluvoy, or his other entities, used all of the loan proceeds for purposes unrelated to Debtor.
As noted by one bankruptcy court, the Court’s inquiry is more complicated than
2:00 PM
simply determining whether Debtor received the loan proceeds:
In bringing this action the Johnsons contend that they did not receive reasonably equivalent value in exchange for the transfer of the mortgage on their house since it was the corporation and not themselves who received all of the loan proceeds. This argument is without merit. It is well settled that a debtor need not benefit directly in order to receive reasonably equivalent value for a transfer. He may benefit indirectly through benefit to a third person. Williams v. Twin City Co., 251 F.2d 678, 681 (9th Cir.1958), Klein v. Tabatchnick, 610 F.2d 1043, 1047 (2d Cir.1979), Rubin v. Manufacturer's Hanover Trust Co., 661 F.2d 979, 991 (2d Cir.1981).
Johnson v. First Nat’l Bank, 81 B.R. 87, 88-89 (Bankr. N.D. Fla. 1987). The Court notes that this third-party/indirect benefit analysis is a factual inquiry that varies upon the facts of each case, and, in the instant case, Debtor has not provided any admissible evidence or legal argument to support its contention that the liens of American Lending, Inc. and The Doshi Family Trust are in bona fide dispute. As a result, Debtor has not met its burden on this issue.
Additionally, the Court notes that there appear to be further issues regarding additional elements of a constructively fraudulent transfer. For example, the complaint asserts that Debtor became insolvent of a result of the transfers, but the record in this case, for example docket number 26, suggests that Debtor was still solvent after the transactions at issue.
14-Day Stay
2:00 PM
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).
Miscellaneous Provisions
The Court has reviewed the remainder of Debtor’s miscellaneous requests. The Court has reviewed the request for payment of a reduced broker’s commission and closing costs. The Court notes that the motion states that the proposed broker’s commission is
$47,250 on page 4 and $42,000 on page 10.
The Court has reviewed Debtor’s request for a § 363(m) good faith finding. As stated in the first section of the discussion section, the declaration of Purchaser submitted with the motion is unsigned, and, additionally, raises questions about whether a good faith finding is appropriate.
Movant to supplement the motion to respond to the issues raised in the above tentative.
APPEARANCES REQUIRED.
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
2:00 PM
Donald W Reid
2:00 PM
Also #14
From: 1/5/21, 4/6/21,4/20/21,5/25/21,6/22/21,7/6/21 EH
(Tele. appr. William Beall, rep. Barstow Daluvoy First Mortgage Investors, LP)
[Tele. appr. Donald Reid, rep. Debtor in possession and Reza Safaie, proposed buyer]
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
2:00 PM
From: 6/29/21 EH
[Tele. appr. Elan Levey, rep. creditor, United States Small Business Administration]
[Tele. appr. Steven Fox, rep. Debtor in Possession]
Docket 136
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
Movant(s):
DW Trim, Inc. Represented By Steven R Fox Steven R Fox
2:00 PM
From: 3/16/21, 3/30/21,5/25/21,6/29/21 EH
[Tele. appr. Elan Levey, rep. creditor, United States Small Business Administration]
[Tele. appr. Steven Fox, rep. Debtor in Possession] [Tele. appr. Cameron Ridley, rep. U.S. Trustee]
[Tele. appr. Hugo Gomez, rep. TM Cobb, Unsecured Creditors Committee]
,
[Tele. appr. Staci Cima, rep. Huttig Building Products, Unsecured Creditors Committee]
Docket 15
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
10:00 AM
From: 7/7/21 EH
Docket 22
- NONE LISTED -
Debtor(s):
Kathryn Jean Gomez Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
EH
Docket 20
- NONE LISTED -
Debtor(s):
Anahi Guadalupe Velazquez Represented By Marlin Branstetter
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 8
- NONE LISTED -
Debtor(s):
Natalie Mendez Represented By Daniel King
Trustee(s):
Lynda T. Bui (TR) Pro Se
10:00 AM
EH
Docket 9
- NONE LISTED -
Debtor(s):
Nichole Lynn Youmans Represented By Yolanda Flores-Burt
Trustee(s):
Steven M Speier (TR) Pro Se
10:00 AM
EH
Docket 12
- NONE LISTED -
Debtor(s):
Derica Johnson Pro Se
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
(Placed on calendar by order entered 6/30/21)
(Notice of Withdrawal of Motion filed 8/3/21)
EH
Docket 40
- NONE LISTED -
Debtor(s):
Steven A Velasquez Sr. Represented By Marc E Grossman
Joint Debtor(s):
Paisley E Velasquez Represented By Marc E Grossman
Movant(s):
Paisley E Velasquez Represented By Marc E Grossman
Trustee(s):
Charles W Daff (TR) Pro Se
11:00 AM
(Status Conference)
From: 4/1/20, 5/13/20, 9/9/20,10/14/20,12/16/20,2/10,21, 4/7/21, 4/21/21,4/28/21,6/9/21
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
Docket 28
No opposition has been filed. Service is 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: $ 1,702.70 Trustee Expenses: $ 39.98
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):
Imelda Vasquez Represented By Douglas L Weeks
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
[Tele. appr. Lynda Bui, chapter 7 trustee]
Docket 101
No opposition has been filed. Service is proper.
The applications for compensation of the Trustee, Counsel for Trustee, and Accountant for Trustee have been set for hearing on the notice required by LBR 2016-1. Pursuant to the Trustee's Final Report and the applications of the associated professionals, the Court is inclined to APPROVE the following administrative expenses:
Trustee Fees: $ 6,750 Trustee Expenses: $ 219.91
Counsel Fees: $ 14,234.50 Counsel Expenses: $ 237.76
Regarding Accountant’s fees, the Court requests copies of the tax returns and prompt determination request letters (redacted as appropriate). The Court also requests clarification as to the IRS online system not being available, and as to the need for services by CPA Savage.
APPEARANCES WAIVED, other than as to Accountant.
11:00 AM
Debtor(s):
Richard Evans Represented By Lane K Bogard
Joint Debtor(s):
Deborah Evans Represented By Lane K Bogard
Trustee(s):
Lynda T. Bui (TR) Represented By Erin P Moriarty
11:00 AM
T. Bui in Support [With Notice of Hearing on Motion] EH
[Tele. appr. Lynda Bui, chapter 7 trustee] [Tele. appr. Joseline Medrano, rep. debtor]
[Tele. appr. Matthew Vanderbeek, rep. broker for chapter 7 trustee]
Docket 83
8/11/2021
Service: Proper Opposition: None
On February 25, 2019, Michael L. Williams ("Debtor") filed a Chapter 13 voluntary petition. The case was converted to a Chapter 7 on March 30, 2021. Debtor filed amended schedules A/B listing the real property located at 33320 Kilroy Road, Temecula, CA ("Property") with a value of $850,000. On July 6, 2021, the Court approved the employment of Pro Realty Group as real estate broker.
The Property is the subject of a marital dissolution, and as of the petition date is
11:00 AM
community property because Debtor and his non-filing spouse are still married. Additionally, Debtor’s spouse filed her own bankruptcy on May 3, 2021 and has not claimed an exemption in the Property.
On July 20, 2021, Trustee filed the instant sale motion. Trustee asserts that Debtor recognizes he is not entitled to a homestead exemption and has stipulated to waive any homestead exemption. The executed stipulation was filed on August 4, 2021 [Dkt.
88]. Trustee proposes to sell the Property to Cody White ("Purchaser") for $915,000, the best out of five offers. Trustee will carve-out 1% of the broker’s commission, and the remaining 5% will be divided the Trustee and Purchaser’s broker. Additionally, Trustee’s broker will be reimbursed up to $1,500 for costs advanced to avoid HOA violations.
Proposed payments from the sale proceeds include: (1) $65,000 for real estate commission and other costs of sale; (2) $6,000 for property taxes; (3) $698,291.44 for the 1st position secured claim of NewRez LLC; (4) $44,000 for the 2nd position secured claim of United States Senate FCU; and (5) $1,500 reimbursement to broker. This leaves a net recovery of $99,658.56 to the estate and provides for an estimated distribution of approximately 20% to general unsecured claims.
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 Partners, 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 evidence of the Property’s marketing, which the Court deems
11:00 AM
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 May 24, 2021 and obtained a sale price above the value of the Property scheduled by Debtor.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) states:
The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if-
applicable nonbankruptcy law permits sale of such property free and clear of such interest;
such entity consents;
such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property;
such interest is in bona fide dispute; or
such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.
Trustee proposes to sell under §§ 363 (f)(2) and (4). 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. Additionally, as Trustee points out the two judgment abstracts appearing on title should be resolved. One appears to be invalid as it was recorded in violation of the automatic stay, and the other appears not to be against the Debtor or his non-filing spouse. In any case, should the judgment abstracts not be resolved, they are subject to a bona fide dispute, and therefore, Trustee may sell the Property pursuant to § 363 (f)(4).
14-Day Stay
FED. R. BANKR. P. Rule 6004(h) states: "An order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." The Court deems the absence of objections to be consent to the relief requested, pursuant to Local Rule 9013-(1)(h), and, therefore, will waive the stay of Rule 6004(h).
11:00 AM
Miscellaneous Provisions
The Court has reviewed the remainder of Trustee’s miscellaneous requests. The Court has reviewed the proposed overbidding procedures and finds such procedures to be reasonable. The Court has reviewed the 1% carve-out requested from the 6% compensation due to the brokers and finds such compensation and carveout to be reasonable in the circumstances.
Finally, the Court has reviewed the declaration of the Purchaser and finds the declaration sufficient for a determination that the Purchaser is a good faith purchaser 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):
Michael L. Williams Represented By Gregory Ashcraft
Movant(s):
Lynda T. Bui (TR) Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
Docket 32
No opposition has been filed. Service is 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: $ 1,855.90 Trustee Expenses: $ 104.90
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):
Mathew Golla Represented By Kevin Tang
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
[Tele. appr. Christina Khil, rep. chapter 7 trustee]
Docket 34
No opposition has been filed. Service is 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: $ 1,485.22 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):
Demitrios Foster Represented By Chris A Mullen
11:00 AM
Joint Debtor(s):
Natesha Eileen Ellis Represented By Chris A Mullen
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
[Tele. appr. Christina Khil, rep. chapter 7 trustee]
Docket 43
No opposition has been filed. Service is 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: $ 570.75 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):
Uriel Garcia Represented By
William Radcliffe
Joint Debtor(s):
Lilliana Garcia Represented By William Radcliffe
11:00 AM
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
(Placed on calendar by order entered 7/14/21) EH
[Tele. appr. Brandon Iskander, rep. chapter 7 trustee]
[Tele. appr. Scott Talkov, rep. Satoko Degracia, former spouse of Debtor, Defendant]
[Tele. appr. Charles Daff, chapter 7 trustee]
Docket 50
- NONE LISTED -
Debtor(s):
Eddie C. DeGracia Jr. Represented By
James D. Hornbuckle
Movant(s):
Charles W Daff (TR) Represented By Brandon J Iskander
Trustee(s):
Charles W Daff (TR) Represented By Brandon J Iskander
11:00 AM
From: 7/21/21
(Placed on calendar by order entered 6/21/21) EH
(Tele. appr. Nancy Hoffmeier Zamora, rep. chapter 7 trustee] [Tele. appr. Larry Simons, chapter 7 trustee]
[Tele. appr. Kasra Barghi, pro se]
Docket 100
- NONE LISTED -
Debtor(s):
Dimlux, LLC Represented By
Donald Beury - SUSPENDED - John E Bouzane
Movant(s):
Larry D Simons (TR) Represented By Nancy H Zamora
Trustee(s):
Larry D Simons (TR) Represented By Nancy H Zamora
11:00 AM
Docket 40
No opposition has been filed. Service is 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: $ 1,586.30 Trustee Expenses: $ 66.95
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):
Christa Teresa McCarthy Represented By Neil R Hedtke
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
From: 5/5/21 EH
Docket 30
- NONE LISTED -
Debtor(s):
Luis Alberto Pineda-Mata Represented By Todd L Turoci
Christopher J Lauria
Movant(s):
Charles W Daff (TR) Represented By Chad V Haes Tinho Mang
D Edward Hays
Trustee(s):
Charles W Daff (TR) Represented By Chad V Haes Tinho Mang
D Edward Hays
11:00 AM
Docket 49
- NONE LISTED -
Debtor(s):
Melissa Lynn Dixson Represented By
Bryant C MacDonald
Trustee(s):
Arturo Cisneros (TR) Pro Se
2:00 PM
(Status Conference.) (Specially set)
(Holding Date)
From: 4/21/21,6/30/21 EH
[Tele. appr. Mark Schnitzer, rep. Plaintiff]
Docket 96
- 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
(Specially set)
Also #19,21
From: 11/13/19, 12/18/19, 5/20/20, 9/9/20,11/4/20, 2/2/20,1/6/21,2/3/21,6/30/21
EH
[Tele. appr. Mark Schnitzer, rep. Plaintiff]
Docket 40
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
(Specially set)
Also #19,20
From: 12/18/19, 5/20/20, 9/9/20,11/4/20,12/2/20,1/6/21,2/3/21,5/5/21
EH
Docket 49
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, 12/2/20,1/6/21,2/3/21,6/30/21
EH
[Tele. appr. Mark Schnitzer, rep. Plaintiff]
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
2:00 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, 9/28/20,11/30/20,2/1/21,7/28/21
EH
[Tele. appr. Jeffrey Golden, rep. trustee, John Pringle] [Tele. appr. David Goodrich, rep. trusteee, John Pringle]
Docket 1
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Zahra Fannyan Represented By Kaveh Ardalan
2:00 PM
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Plaintiff(s):
John P. Pringle Represented By David M Goodrich Sonja Hourany
Trustee(s):
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01083 Pringle v. Eskarous
EH
[Tele. appr. David Goodrich, rep. trusteee, John Pringle]
Docket 17
- NONE LISTED -
Debtor(s):
Mark Bastorous Represented By Thomas F Nowland
Defendant(s):
Manal Eskarous Represented By Michael A Corfield
Joint Debtor(s):
Bernadette Shenouda Represented By Thomas F Nowland
Movant(s):
Manal Eskarous Represented By Michael A Corfield
Plaintiff(s):
John P. Pringle Represented By David M Goodrich
2:00 PM
Trustee(s):
Sonja Hourany
John P Pringle (TR) Represented By David M Goodrich Reem J Bello
2:00 PM
Adv#: 6:20-01006 Eggleston et al v. Ramirez
EH
[Tele. appr. Scott Talkov, rep. Defendant] [Tele. appr. Tyler Brown, rep. Plaintiffs]
Docket 103
- 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
2:00 PM
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#: 6:21-01057 Speier, Chapter 7 Trustee v. Northwestern Mutual Life Insurance Company,
From: 7/7/21 EH
[Tele. appr. Robert Goe, rep. Plaintiff, Steven Speier]
[Tele. appr. Louis Esbin, rep. for Harold W. Baer, Kimberly A. Baer, Laura Losquadro and HBall Properties, LLC]
[Tele. appr. Karen Tsui, rep. Northwestern Mutual Life Insurance Company]
Docket 1
- NONE LISTED -
Debtor(s):
Daisy Wheel Ribbon Co., Inc. Represented By Louis J Esbin
2:00 PM
Defendant(s):
Northwestern Mutual Life Insurance Represented By
Karen T Tsui
Harold W. Baer Represented By Louis J Esbin
Sharon M. Baer Represented By Louis J Esbin
Plaintiff(s):
Steven M Speier, Chapter 7 Trustee Represented By
Robert P Goe
Trustee(s):
Steven M Speier (TR) Represented By Robert P Goe
2:00 PM
Adv#: 6:20-01123 Thompson v. Torring
EH
Docket 41
- NONE LISTED -
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
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
Also #29 EH
[Tele. appr. Misty Perry Issacson, rep. Plaintiffs] [Tele. appr. Baruch Cohen, rep. Defendant]
Docket 30
- NONE LISTED -
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Christopher Edward Hutchinson Represented By
Baruch C Cohen
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Movant(s):
Christopher Edward Hutchinson Represented By
2:00 PM
Baruch C Cohen
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Matthew Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01015 Cotter et al v. Hutchinson et al
Also #28
*Alias summoms issued on 3/3/21 for defendant Veronica Hutchinson
*Second amended complaint filed 6/2/21 From: 3/31/21,5/5/21,7/28/21
EH
[Tele. appr. Misty Perry Issacson, rep. Plaintiffs) [Tele. appr. Baruch Cohen, rep. Defendant]
Docket 1
- NONE LISTED -
Debtor(s):
Christopher Edward Hutchinson Represented By
Paul Y Lee
Defendant(s):
Veronica Aurora Hutchinson Represented By Baruch C Cohen
Christopher Edward Hutchinson Represented By
Baruch C Cohen
2:00 PM
Joint Debtor(s):
Veronica Aurora Hutchinson Represented By Paul Y Lee
Plaintiff(s):
Courtney Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Matthew Cotter Represented By
R Gibson Pagter Jr. Misty A Perry Isaacson
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01045 Montejano v. Rios, Jr.
From: 6/9/21 EH
Docket 4
- NONE LISTED -
Debtor(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Defendant(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Movant(s):
Rodolfo Rios Jr. Represented By Christopher J Langley
Plaintiff(s):
Armando Montejano Represented By Garrick A Hollander Ryan A Baggs
Trustee(s):
Todd A. Frealy (TR) Pro Se
2:00 PM
Adv#: 6:21-01066 Maddox v. Ramas, III et al
From: 7/28/21 EH
[Tele. appr. Walter Scott, rep. Defendants] [Tele. appr. Morris Nazarian, rep. Plaintiff]
Docket 1
- NONE LISTED -
Debtor(s):
Sotero Chandler Elias Ramas III Represented By
Walter Scott
Defendant(s):
Sotero Chandler Elias Ramas III Represented By
Walter Scott
Harvy Yojany Ortiz Campo Represented By Walter Scott
Joint Debtor(s):
Harvy Yojany Ortiz Campo Represented By Walter Scott
2:00 PM
Plaintiff(s):
Farideh Maddox Represented By Morris Nazarian
Trustee(s):
Todd A. Frealy (TR) Represented By Anna Landa
2:00 PM
Adv#: 6:21-01069 Skeffington et al v. Buckner
From: 8/4/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Brent Anthony Buckner Represented By Michael R Totaro
Defendant(s):
Brent Anthony Buckner Represented By
Candice Candice Bryner
Plaintiff(s):
William Skeffington Represented By
J Scott Williams
Laurie Skeffington Represented By
J Scott Williams
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
EH
[Tele. appr. Nancy Hoffmeier Zamora, rep. chapter 7 trustee] [Tele. appr. John Pringle, chapter 7 trustee]
Docket 44
No opposition has been filed. Service was proper.
As explained in the previous tentative posted for the hearing held on July 21, 2021, pursuant to 11 U.S.C. § 326(a), Trustee may not base the calculation of his compensation on the $114,162.12 paid to Aylstock, Witkin, Kreis & Overholtz, PLLC ("special counsel") or the $14,000 for the MDL assessment, as these moneys were not, at any time, held, administered, received, or disbursed by Trustee. See e.g., In re Guido, 237 B.R. 562, 564-65 (Bankr. E.D.N.Y. 1999). Rather, these money were disbursed by a settlement administrator.
In the instant supplement declaration filed on August 11, 2021 [Dkt. 50], Trustee cites to In re Blair, 329 B.R. 358 (Bankr. App. 9th Cir. 2005) for the proposition that the Trustee constructively disbursed the moneys similar to disbursement from escrow after the sale of real estate. 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). 329 B.R.
358 at *3 (emphasis added). In reaching its conclusion the Blair court noted that agency law applied:
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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 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 the sale of the properties. Id. at *2.
By contrast, the court in Moreno rejected a trustee’s application for compensation that included moneys 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
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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 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 quotations omitted).
The crucial difference between Blair and Moreno is that in Blair the escrow 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. As neither special counsel nor the administrator were employed by Trustee pursuant to Court order, the Court cannot find that Trustee constructively disbursed the moneys through the settlement administrator. The fact that Trustee was authorized to execute documents and take action necessary to implement the settlement does not equate to "control" sufficient to create an agency relationship.
Based on the foregoing, the Court having reviewed Trustee’s calculation and the evidence submitted in support of the requested expenses, is inclined to approve fees in the amount of $4,588.00 and expenses in the amount of $18.60.
APPEARANCES WAIVED. If Trustee chooses not to appear, he will be deemed to submit on the tentative. If written or oral opposition is presented at the hearing, the hearing may be continued. Trustee to lodge order within 7 days.
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Debtor(s):
Maria Teresa Ingal Batac Represented By George P Hobson Jr
Trustee(s):
John P Pringle (TR) Represented By Nancy H Zamora
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Granting Related Relief (Motion filed 7/28/21)
EH
[Tele. appr. Jillian Wright, rep. creditor, Sun City Shadow Hills Community Association]
[Tele. appr. Nancy Lee, rep. creditor, CitiMortgage, Inc.] [Tele. appr. Lynda Bui, chapter 7 trustee]
[Tele. appr. Richard Halderman Jr. real estate agent for trustee, Lynda Bui]
[Tele. appr. Norman Lee, agent for buyers, Richard Britton and Yoland Britton]
Docket 39
8/18/2021
Service: Proper Opposition: None
On June 2, 2018, Gilbert L. Belfatto and Carole L. Morgan ("Debtors") filed a Chapter 13 voluntary petition. Debtors received a discharge on September 17, 2018. In their
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schedules, Debtors listed the real property located at 40767 Calle Los Osos, Indio, CA 92203 ("Property") with a value of $259,350 and claimed an exemption in the Property in the amount of $175,000. On December 6, 2018, the Court approved the employment of Richard A. Halderman, Jr. as real estate broker. On April 22, 2019, the Court entered an order approving the stipulation for occupancy and marketing of real property. Both Debtors have passed away.
On July 28, 2021, Trustee filed the instant sale motion [Dkt. 39]. Trustee proposes to sell the Property to Richard Kerry Britton and Yolanda Britton ("Purchasers"), for
$330,000, as the only offer after marketing, inquiries and showings in 2021, after Mr. Belfatto passed. On August 4, 2021 Creditor Sun City Shadow Hills Community Association filed a non-opposition to the sale, conditioned on payment of Debtors’ delinquent HOA dues in the amount of $3,354.42. Creditor CitiMortgage, Inc. also filed a non-opposition, requesting that any order granting the sale motion should include the following language:
The loan secured by a third lien on real property located at 40767 Calle Los Osos, Indio, CA 92203 will be paid in full as of the date of the closing of the sale, and the sale will be conducted through an escrow and based on a non- expired contractual payoff statement received directly from CitiMortgage, Inc.
Proposed payments from the sale proceeds include: (1) $26,400 for real estate commission and other costs of sale (6% to commissions); (2) $12,500 for property taxes; (3) $38,000 for the 1st position secured claim of Citimortgage; (4) $44,000 for the 2nd position secured claim of Citibank; (5) $1,000 for estimated delinquent HOA fees; (6) $1,500 reimbursement to broker for costs advanced to avoid HOA violations, leaving the estate with net proceeds of $224,600. The proceeds will be applied to administrative claims in the amount of $17,500 and general unsecured claims in the amount of $16,038.24. This leaves a surplus of $191,061.76, which will be paid to Debtors’ heirs.
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary
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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 Partners, 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 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 market the Property in November 2018, although they were put on hold during the pandemic and to accommodate Mr.
Belfatto’s request to buy back the equity. Marketing efforts became active again in 2021 and Trustee obtained a sale price above the value of the Property scheduled by Debtor.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) states:
The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if-
applicable nonbankruptcy law permits sale of such property free and clear of such interest;
such entity consents;
such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property;
such interest is in bona fide dispute; or
such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.
Trustee proposes to sell under §§ 363 (f)(2) and (4). Here, the sale price exceeds the aggregate value of the liens encumbering the Property with a surplus going to
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Debtors’ heirs, and therefore § 363(f)(3) permits Trustee to sell the Property free and clear of liens. Additionally, to the extent there are any unresolved liens or interests against the Property, Trust will dispute them and they will attach to the sale proceeds as permitted under § 363 (f)(4).
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 6% compensation due to the brokers (to be divided equally) and finds such compensation to be reasonable in the circumstances.
Finally, the Court has reviewed the declaration of the Purchaser and finds the declaration sufficient for a determination that the Purchaser is a good faith purchaser 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 and the requests in the non-oppositions.
APPEARANCES REQUIRED.
Debtor(s):
Gilbert L Belfatto Represented By Christopher Hewitt
Joint Debtor(s):
Carole L Morgan Represented By
11:00 AM
Movant(s):
Christopher Hewitt
Lynda T. Bui (TR) Pro Se
Trustee(s):
Lynda T. Bui (TR) Pro Se
11:00 AM
(Motion filed 7/23/21) EH
[Tele. appr. Nancy Hoffmeier Zamora, rep. chapter 7 trustee]
Docket 115
8/18/2021
Service: Proper Opposition: None
On May 19, 2020, Dimlux LLC ("Debtor") filed a Chapter 11 voluntary petition. The case was converted to a Chapter 7 on September 29, 2020. On Schedule A/B, Debtor listed an interest in the property located at 4880 Winnetka Avenue, Woodland Hills, CA ("Property"). On March 22, 2021, the Court approved Trustee’s application to hire Neiman Realty as the real estate broker ("Broker") to market the Property. The Property was listed for $1,499,949 on major MLS listings, and the Broker received multiple inquiries and conducted seventeen private showings.
At the hearing on August 11, 2021, the Court approved the compromise between Trustee and Creditor Mansour Barghi ("M. Barghi"), which provides that M. Barghi will release the notice of lis pendens on the Property.
On July 23, 2021, Trustee filed the instant sale motion [Dkt. 115]. Trustee proposes to sell the Property to Yi Zhang ("Purchaser") for $1,280,000, as an all cash, contingency free sale. Trustee and the Broker agree it is the highest and best offer out
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of six other offers that Trustee received. On August 4, 2021, Creditor Freedom Mortgage Corporation filed a non-opposition to the sale.
Proposed payments from the sale proceeds include: (1) $76,800 for 6% real estate commission; (2) $658,365.34 for the 1st position secured claim of TD; (3) $20,727.21 for property taxes; (4) $3,031.30 for other taxes; (5) $14,661.23 for other closing costs. This leaves an estimated $506,414.92 for the benefit of the 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 Partners, 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 evidence of the Property’s marketing, which the Court deems sufficient to establish the reasonableness of the sale. Specifically, the Court notes that Trustee listed the property on major MLS sites, had multiple inquiries and showings, and engaged with six other potential offers. Ultimately, Trustee obtained an all-cash offer with no contingencies and within range of the listing price that provides for a large recovery to the estate.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) 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
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if-
applicable nonbankruptcy law permits sale of such property free and clear of such interest;
such entity consents;
such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property;
such interest is in bona fide dispute; or
such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.
Trustee proposes to sell under §363(f). 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 6% compensation due to the brokers (to be divided equally) and finds such compensation to be reasonable under the circumstances.
Finally, the Court has reviewed the declaration of the Purchaser and finds the declaration sufficient for a determination that the Purchaser is a good faith purchaser pursuant to 11 U.S.C. § 363(m).
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The Court is inclined to GRANT the motion in its entirety subject to any overbids being received.
APPEARANCES REQUIRED.
Debtor(s):
Dimlux, LLC Represented By
Donald Beury - SUSPENDED - John E Bouzane
Movant(s):
Larry D Simons (TR) Represented By Nancy H Zamora
Trustee(s):
Larry D Simons (TR) Represented By Nancy H Zamora
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, 4/21/21
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 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 Rafael R Garcia-Salgado
2:00 PM
Adv#: 6:18-01210 Kim v. Yoon et al
(Holding date)
From: 12/12/18, 1/9/19, 7/31/19, 10/16/19, 3/11/20, 7/15/20, 9/14/20, 3/4/21, 9/15/20, 10/18/20 ,2/3/21, 3/3/21,5/12/21, 6/16/21
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
2:00 PM
Plaintiff(s):
Vivian Kim Represented By
Jiyoung Kym
Trustee(s):
Robert Whitmore (TR) Pro Se
2:00 PM
Adv#: 6:20-01012 Canyon Springs Enterprises dba RSH Construction Se v. Capoccia
From: 3/25/20, 4/1/20,12/2/20,2/3/21,6/30/21 EH
[Tele. appr. Daren Schlecter, rep. Plaintiff] [Tele. appr. Todd Turoci, rep. Defendant]
Docket 1
- NONE LISTED -
Debtor(s):
Marc Anthony Capoccia Represented By Douglas A. Crowder
Defendant(s):
Marc Anthony Capoccia Represented By Todd L Turoci
Plaintiff(s):
Canyon Springs Enterprises dba Represented By
David P Berschauer Daren M Schlecter
2:00 PM
Trustee(s):
Larry D Simons (TR) Pro Se
2:00 PM
Adv#: 6:21-01016 Bui v. Vargas
From: 4/7/21,4/21/21, 5/26/21, 6/23/21 EH
Docket 1
- NONE LISTED -
Debtor(s):
Juan Vargas Represented By
Todd L Turoci
Defendant(s):
Lourdes P. Vargas Represented By Michael Smith
Joint Debtor(s):
Anabely Vargas Represented By Todd L Turoci
Plaintiff(s):
Lynda T. Bui Represented By
2:00 PM
Trustee(s):
Carmela Pagay
Lynda T. Bui (TR) Represented By Todd A Frealy
2:00 PM
Adv#: 6:21-01070 Raman Enterprises LLC, a Nevada corporation v. Doshi et al
EH
Docket 1
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Defendant(s):
Arvind Doshi Pro Se
Chandrika A Doshi Pro Se
American Lending, Inc. Pro Se
Plaintiff(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 111
On March 19, 2018, Rodolfo & Irma Aguiar ("Debtors") filed a Chapter 13 voluntary petition. On July 2, 2018, Debtors’ Chapter 13 plan was confirmed. The plan was subsequently modified once. On March 3, 2021, the Court approved Debtors’ counsel’s request to withdraw as attorney of record.
On July 9, 2021, Trustee filed a notice of intent to file final report and, three days later, a notice of final cure mortgage payment re: Rule 3002.1. On July 21, 2021, Nationstar Mortgage LLC filed a response, indicating that Debtors were $14,980.38 delinquent on mortgage payments, having not made payments between July 2020 and May 2021.
On July 22, 2021, Trustee filed a motion for order denying discharge and/or dismissing case on the basis that Debtor materially defaulted under the terms of the confirmed Chapter 13 plan.
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The Court does not formally "deny" a discharge for failure to make payments. Rather, if Debtor has not satisfied the requirements for receiving a discharge, the Court would dismiss the case rather than enter a discharge. Therefore, the Court will construe Trustee’s motion as a request to dismiss the case under 11 U.S.C. § 1307(c)(6).
Notice appearing proper, good cause appearing, and no opposition having been filed, the Court is inclined to GRANT the motion to the extent of dismissing the case, and DENY the request to enter an order denying discharge.
APPEARANCES REQUIRED.
Debtor(s):
Rodolfo Aguiar Pro Se
Joint Debtor(s):
Irma D Aguiar Pro Se
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #2.1 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtors]
Docket 129
- 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
Movant(s):
Hakim M. Iscandari Represented By Christopher J Langley Michael Smith
Christine E. Allen Represented By Christopher J Langley Christopher J Langley
11:00 AM
Trustee(s):
Michael Smith Michael Smith
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/9/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtors]
Docket 125
- 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
11:00 AM
Also #4 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 32
- NONE LISTED -
Debtor(s):
Doreen M. Coronado Represented By Christopher J Langley Michael Smith
Movant(s):
Doreen M. Coronado Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/22/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 27
- NONE LISTED -
Debtor(s):
Doreen M. Coronado Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Gouveia, rep. Debtor]
Docket 49
- NONE LISTED -
Debtor(s):
Silvestre Barajas Represented By
Rabin J Pournazarian
Movant(s):
Rod Danielson (TR) Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/22/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Tushar Jansen, Debtor)
[Tele. appr. Mary Jansen, Debtor]
Docket 69
- NONE LISTED -
Debtor(s):
Tushar Anthony Jansen Pro Se
Joint Debtor(s):
Mary Frances Jansen Pro Se
Movant(s):
Tushar Anthony Jansen Pro Se
Mary Frances Jansen Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 41
On April 30, 2021, Lourdes Vargas ("Debtor") filed a Chapter 13 voluntary petition. On May 23, 2021, CACH, LLC filed a proof of claim for an unsecured claim in the amount of $1,024.57 ("Claim 1"). That same day, LVNV Funding, LLC filed a proof of claim for an unsecured claim in the amount of $794.27 ("Claim 2"). On June 18, 2021, Merrick Bank filed a proof of claim for an unsecured claim in the amount of
$608.51 ("Claim 5").
On June 22, 2021, Debtor filed objections to Claim 1, Claim 2, and Claim 5, asserting that each of the claims was statutorily barred. The Court notes that on the objections to Claim 2 and Claim 5, the service address listed on the proof of service does not match the address identified on the proof of claim. On July 1, 2021, LVNV Funding
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LLC filed a withdrawal of claim 2.
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 is required by LBR 3007-1, "an objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified."
The Court notes that LVNV Funding LLC withdrew Claim 2 on July 1, 2021. 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 as consent to the relief requested.
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
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unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 1 states that it is based upon a credit card. 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 last payment date of October 28, 2013. That is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 1 is unenforceable.
Regarding Claim 5, the Court notes that service was improper because it was not mailed to the proper service address.
For the reasons set forth above, the Court is inclined to SUSTAIN the objection to Claim 1 and to Claim 2, and OVERRULE the objection to CLAIM 5 based on improper service.
APPEARANCES REQUIRED.
Debtor(s):
Lourdes P. Vargas Represented By Michael Smith
Movant(s):
Lourdes P. Vargas Represented By Michael Smith Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #7,9,10
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 42
On April 30, 2021, Lourdes Vargas ("Debtor") filed a Chapter 13 voluntary petition. On May 23, 2021, CACH, LLC filed a proof of claim for an unsecured claim in the amount of $1,024.57 ("Claim 1"). That same day, LVNV Funding, LLC filed a proof of claim for an unsecured claim in the amount of $794.27 ("Claim 2"). On June 18, 2021, Merrick Bank filed a proof of claim for an unsecured claim in the amount of
$608.51 ("Claim 5").
On June 22, 2021, Debtor filed objections to Claim 1, Claim 2, and Claim 5, asserting that each of the claims was statutorily barred. The Court notes that on the objections to Claim 2 and Claim 5, the service address listed on the proof of service does not match the address identified on the proof of claim. On July 1, 2021, LVNV Funding
11:00 AM
LLC filed a withdrawal of claim 2.
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
As is required by LBR 3007-1, "an objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified."
The Court notes that LVNV Funding LLC withdrew Claim 2 on July 1, 2021. 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 as consent to the relief requested.
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
11:00 AM
unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 1 states that it is based upon a credit card. 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 last payment date of October 28, 2013. That is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 1 is unenforceable.
Regarding Claim 5, the Court notes that service was improper because it was not mailed to the proper service address.
For the reasons set forth above, the Court is inclined to SUSTAIN the objection to Claim 1 and to Claim 2, and OVERRULE the objection to CLAIM 5 based on improper service.
APPEARANCES REQUIRED.
Debtor(s):
Lourdes P. Vargas Represented By Michael Smith
Movant(s):
Lourdes P. Vargas Represented By Michael Smith Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 43
On April 30, 2021, Lourdes Vargas ("Debtor") filed a Chapter 13 voluntary petition. On May 23, 2021, CACH, LLC filed a proof of claim for an unsecured claim in the amount of $1,024.57 ("Claim 1"). That same day, LVNV Funding, LLC filed a proof of claim for an unsecured claim in the amount of $794.27 ("Claim 2"). On June 18, 2021, Merrick Bank filed a proof of claim for an unsecured claim in the amount of
$608.51 ("Claim 5").
On June 22, 2021, Debtor filed objections to Claim 1, Claim 2, and Claim 5, asserting that each of the claims was statutorily barred. The Court notes that on the objections to Claim 2 and Claim 5, the service address listed on the proof of service does not match the address identified on the proof of claim. On July 1, 2021, LVNV Funding
11:00 AM
LLC filed a withdrawal of claim 2.
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 is required by LBR 3007-1, "an objection to claim must be supported by admissible evidence sufficient to overcome the evidentiary effect of a properly documented proof of claim executed and filed in accordance with FRBP 3001. The evidence must demonstrate that the proof of claim should be disallowed, reduced, subordinated, re-classified, or otherwise modified."
The Court notes that LVNV Funding LLC withdrew Claim 2 on July 1, 2021. 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 as consent to the relief requested.
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
11:00 AM
unenforceable. See e.g., Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
Claim 1 states that it is based upon a credit card. 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 last payment date of October 28, 2013. That is more than four years prior to the filing of the bankruptcy case, and, therefore, Claim 1 is unenforceable.
Regarding Claim 5, the Court notes that service was improper because it was not mailed to the proper service address.
For the reasons set forth above, the Court is inclined to SUSTAIN the objection to Claim 1 and to Claim 2, and OVERRULE the objection to CLAIM 5 based on improper service.
APPEARANCES REQUIRED.
Debtor(s):
Lourdes P. Vargas Represented By Michael Smith
Movant(s):
Lourdes P. Vargas Represented By Michael Smith Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/1/21 EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 0
- NONE LISTED -
Debtor(s):
Lourdes P. Vargas Represented By Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Aaron Lloyd, rep. Debtor]
Docket 0
- NONE LISTED -
Debtor(s):
Kathleen A Lander Represented By Aaron Lloyd
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Julie Villalobos, rep. Debtors]
Docket 0
- NONE LISTED -
Debtor(s):
Robert Salazar Represented By Julie J Villalobos
Joint Debtor(s):
Elena Salazar Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jack Kelly Jackson Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Anthony Edward Alanis Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Natalie Alvarado, rep. Debtor]
Docket 0
- NONE LISTED -
Debtor(s):
Cuahtemoc Baez Parra Represented By Natalie A Alvarado
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Jenny Doling, rep. Debtor]
Docket 0
- NONE LISTED -
Debtor(s):
Carol Ann Venable Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Jenny Doling, rep. Debtors]
Docket 0
- NONE LISTED -
Debtor(s):
Wayne Ira Abravanel Represented By Jenny L Doling
Joint Debtor(s):
Dayna Lee Abravanel Represented By Jenny L Doling
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Norma Duenas, rep. Debtors]
Docket 0
- NONE LISTED -
Debtor(s):
Ralph Frazier Bouknight Jr. Represented By Norma Duenas
Joint Debtor(s):
Kathleen Patrice Bouknight Represented By Norma Duenas
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Susan Elizabeth Schroeder Represented By Mona V Patel
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Nancy Lee, rep. creditor, Wells Fargo Bank]
Docket 0
- NONE LISTED -
Debtor(s):
Virginia Benavides Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Julie Villalobos, rep. Debtors]
Docket 0
- NONE LISTED -
Debtor(s):
Luis Lopez Represented By
Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Jose Gomez Fernandez Represented By
George C Panagiotou
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Julie Villalobos, rep. Debtors]
Docket 0
- NONE LISTED -
Debtor(s):
Julie Rodriguez Represented By Julie J Villalobos
Joint Debtor(s):
Paul A Rodriguez Represented By Julie J Villalobos
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Rosa Bertha Lopez Pro Se
Trustee(s):
Larry D Simons (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
Debtor(s):
Maisha Tamu Mesa Pro Se
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #27,28
(Placed on calendar by order entered 7/19/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 13
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Movant(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #26,28
(Placed on calendar by order entered 7/19/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 12
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Movant(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
Also #26,27
(Placed on calendar by order entered 7/19/21) EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 11
- NONE LISTED -
Debtor(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Movant(s):
Ronald Wayne Cloyd Represented By Jonathan D Doan
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 58
- NONE LISTED -
Debtor(s):
Gwyneth Martin Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 241
- 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 76
- NONE LISTED -
Debtor(s):
Linda Revoner Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) (Tele. appr. Jennifer Tanios, rep. Debtors)
Docket 140
- 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 99
- NONE LISTED -
Debtor(s):
Jesus N Aguilera Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 125
- NONE LISTED -
Debtor(s):
Donna Denise Upton Represented By Seema N Sood
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Michael Smith, rep. Debtor]
Docket 117
- 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 109
- 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)
Docket 95
- 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 61
- NONE LISTED -
Debtor(s):
Rhonda Jan Kennedy Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Ralph Carver Lowe Represented By Neil R Hedtke
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 79
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 58
- NONE LISTED -
Debtor(s):
Keisha Renette Williams Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 87
- NONE LISTED -
Debtor(s):
Flor Aguilar Represented By
Rabin J Pournazarian
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 51
- NONE LISTED -
Debtor(s):
Michelle Crain Represented By Dana Travis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Amanda Billyard, rep. Debtors]
Docket 41
- NONE LISTED -
Debtor(s):
Billy J Woody Represented By Amanda G. Billyard
Joint Debtor(s):
Tamara L Woody Represented By Amanda G. Billyard
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 46
- NONE LISTED -
Debtor(s):
Mark David Dixon Represented By April E Roberts
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 39
- NONE LISTED -
Debtor(s):
Rueben Duran Represented By Paul Y Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Todd Turoci, rep, Debtor]
Docket 80
- NONE LISTED -
Debtor(s):
Angela Clarice Atou Represented By Todd L Turoci
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 77
- NONE LISTED -
Debtor(s):
Roshanda Jeannen Dodds Represented By Nicholas M Wajda
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 106
- NONE LISTED -
Debtor(s):
Elizabeth T Baker Represented By Nancy Korompis
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
Docket 62
- 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
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee)
Docket 66
- NONE LISTED -
Debtor(s):
Paul Trevino Represented By
Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Daniel King, rep. Debtor]
Docket 47
- NONE LISTED -
Debtor(s):
Bernice H Antunez Represented By Daniel King
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
(Tele. appr. Joey De Leon, rep. Chapter 13 Trustee) [Tele. appr. Ramiro Flores Munoz, rep. Debtor]
Docket 78
- NONE LISTED -
Debtor(s):
Liliana Martinez Represented By
Ramiro Flores Munoz
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 72
- NONE LISTED -
Debtor(s):
Paula Rosales Represented By William Radcliffe
Trustee(s):
Rod Danielson (TR) Pro Se
11:01 AM
EH
Docket 115
- NONE LISTED -
Debtor(s):
Annabelle M. Vigil Represented By Christopher J Langley Michael Smith
Trustee(s):
Rod Danielson (TR) Pro Se
10:00 AM
Adv#: 6:13-01171 Schrader v. Sangha
EH
Docket 507
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Represented By Donald W Reid
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
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, 11/18/20,12/2/20,2/17/21, 4/7/21,4/21/21,5/26/21
EH
Docket 1
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
10:00 AM
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, 11/18/20,12/2/20,2/17/21, 4/7/21,4/21/21,5/26/21
EH
Docket 1
Debtor(s):
Narinder Sangha Represented By Deepalie M Joshi
Defendant(s):
Narinder Sangha Pro Se
Plaintiff(s):
Charles Edward Schrader Pro Se
Trustee(s):
Karl T Anderson (TR) Pro Se
11:00 AM
(Motion filed 7/26/21)
MOVANT: U.S. BANK TRUST NATIONAL ASSOCIATION
EH
[Tele. appr. Tina Trinh, rep. Debtor]
[Tele. appr. Erica Loftis, rep. creditor, U.S. Bank Trust National Association]
Docket 52
Parties to apprise the Court of adequate protection discussions and the status of mortgage arrears.
APPEARANCES REQUIRED.
Debtor(s):
Juan I. Gallardo Represented By Tina H Trinh
Movant(s):
U.S. Bank Trust National Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/20/21
MOVANT: WELLS FARGO BANK N.A.
EH
[Tele. appr. Joseph Delmotte, rep. Wells Fargo Bank] [Tele. appr. Trang Phuong Nguyen, rep. Debtor]
Docket 74
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed twelve car payments. Accordingly, 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 ¶ 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.
11:00 AM
Debtor(s):
Michael Anthony Delgado III Represented By Gary S Saunders
Trang Phuong Nguyen
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Joseph C Delmotte
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: BRIDGECREST CREDIT COMPANY
EH
Docket 114
- NONE LISTED -
Debtor(s):
Jorge Manuel Azmitia Represented By Nicholas M Wajda
Joint Debtor(s):
Yoshiko Azmitia Represented By Nicholas M Wajda
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Erica T Loftis Pacheco
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: AJAX MORTGAGE LOAN TRUST 2019-E, MORTGAGE BACK SECURITIES, SERIES 2910-E BY U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
From: 2/16/21,4/27/21,5/25/21,7/6/21 EH
[Tele. appr. Donna Travis, rep. Debtor]
[Tele. appr. Reilly Wilkinson, rep. creditor Ajax Mortgage]
Docket 78
- NONE LISTED -
Debtor(s):
Portia Wondaline Barmes Represented By Dana Travis
Movant(s):
Ajax Mortgage Loan Trust 2019-E, Represented By
Reilly D Wilkinson Joshua L Scheer
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 4/20/21,5/25/21,7/6/21,8/10/21 MOVANT: NEWREZ LLC
EH
[Tele. appr. Kristin Zilberstein, rep. creditor NewRez LLC] [Tele. appr. Fritz Firman, rep. Debtors]
Docket 59
Given the evidence submitted by Debtors that Movant granted Debtors a COVID-19 related forbearance for the payments in question, the Court is inclined to DENY the motion for lack of cause shown.
APPEARANCES REQUIRED.
Debtor(s):
Diana Nava Represented By
Joseph A Weber Fritz J Firman
11:00 AM
Joint Debtor(s):
Ramiro Nava Represented By
Joseph A Weber Fritz J Firman
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Eric P Enciso
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/6/21
MOVANT: PENNYMAC LOAN SERVICES, LLC.
EH
[Tele. appr. Christina Khil, rep. creditor, Pennymac Loan Services, LLC] [Tele. appr. Paul Lee, rep. Debtor]
Docket 30
Service: Proper Opposition: Debtor
Parties to apprise the Court of the status of arrears. APPEARANCES REQUIRED.
Debtor(s):
Douglas E Crayton Represented By Paul Y Lee
Movant(s):
PennyMac Loan Services, LLC Represented By Robert P Zahradka Christina J Khil
11:00 AM
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 7/20/21
MOVANT: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
[Tele. appr. Daniel Fujimoto, rep. creditor, Deutsche Bank National Trust Company, as Trustee, in trust for the registered holders of Morgan Stanley ABS Capital I Inc. Trust 2006-NC5, Mortgage Pass-Through Certificates, Series 2006 NC5]
[Tele. appr. Michael Smith, rep. Debtors]
Docket 123
Parties to apprise the Court of the status of mortgage arrears and of any adequate protection discussion.
APPEARANCES REQUIRED.
11:00 AM
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):
Deutsche Bank National Trust 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. Daniel Fujimoto, rep. creditor, Lakeview Loan Servicing, LLC]
Docket 35
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed three mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2 and 3;
-GRANT waiver of FRBP 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.
Movant to include the following language in the order: "In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium."
11:00 AM
Debtor(s):
Louis Anthony Coffin Represented By Daniel King
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: DEUTSCHE BANK NATIONAL TRUST COMPANY
EH
[Tele. appr. Darlene Vigil, rep. creditor, Deutsche Bank]
Docket 40
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed four mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2, 3, and 12;
-GRANT waiver of FRBP 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.
Movant to include the following language in the order: "In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium."
11:00 AM
Debtor(s):
Anthony Sanchez Represented By Laleh Ensafi
Movant(s):
Deutsche Bank National Trust Represented By Darlene C Vigil Diane Tran
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: NEWREZ LLC
EH
[Tele. appr. Kristin Zilberstein, rep. creditor, NewRez LLC]
Docket 42
The Court having reviewed the motion, no opposition having been filed, finds cause exists where Debtor has missed six mortgage payments. Accordingly, the Court is inclined to:
-GRANT request under ¶¶ 2, 3, and 12
-GRANT waiver of FRBP 4001(a)(3) stay;
-DENY relief from the co-debtor stay, as co-debtor was not served;
-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.
Movant to include the following language in the order: "In granting relief from stay the Court does not rule on whether the requested nonbankruptcy action is subject to, or excepted from, any applicable pandemic-related moratorium."
11:00 AM
Debtor(s):
Daniel Anthony Moral Represented By Kevin M Mahan
Joint Debtor(s):
Jennifer Rios Represented By
Kevin M Mahan
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Mukta Suri
Dane W Exnowski Kristin A Zilberstein
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
From: 8/10/21
MOVANT: BROKER SOLUTIONS, INC.
EH
[Tele. appr. Christina Khil, rep. creditor, Broker Solutions, Inc.] [Tele. appr. Trang Phuong Nguyen, rep. Debtor]
Docket 38
The Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(1);
-WAIVE Rule 4001(a)(3) stay;
-GRANT requests under ¶¶ 2 and 3;
-DENY alternative request under ¶ 13 as moot.
Movant to include in the proposed order a provision providing that: "In granting stay relief the Court does not rule on the applicability of any pandemic-related moratoriums."
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):
Perry A Covello Represented By Gary S Saunders
Joint Debtor(s):
Tia Lia Covello Represented By Gary S Saunders
Movant(s):
Broker Solutions, Inc. dba New Represented By Christina J Khil
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: TD AUTO FINANCE
EH
Docket 40
- NONE LISTED -
Debtor(s):
Juan Manuel Sanchez Tejeda Represented By Raymond Perez
Movant(s):
TD Auto Finance LLC Represented By Sheryl K Ith
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
MOVANT: MIDFIRST BANK
EH
Docket 34
- NONE LISTED -
Debtor(s):
Steven Edward Owen Represented By Julie J Villalobos
Movant(s):
MidFirst Bank Represented By Jennifer C Wong Nancy L Lee
Trustee(s):
Rod Danielson (TR) Pro Se
11:00 AM
(Motion filed 7/23/21)
MOVANT: 21st MORTGAGE CORPORATION
EH
Docket 11
- NONE LISTED -
Debtor(s):
Gary Martin Greenlee Represented By James P Doan
Joint Debtor(s):
Nina Jo Greenlee Represented By James P Doan
Movant(s):
21ST MORTGAGE Represented By Diane Weifenbach Amy Dukes
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: CAPITAL ONE AUTO FINANCE
EH
Docket 16
For the reasons stated 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):
Bradford James Clark Represented By Aaron Lloyd
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
11:00 AM
Trustee(s):
Todd A. Frealy (TR) Pro Se
11:00 AM
MOVANT: U.S. BANK NATIONAL ASSOCIATION
EH
[Tele. appr. Diane Weifenbach, rep. creditor, U.S. Bank National Association]
[Tele. appr. Joanne Andrew, specially appearing for Debtor]
Docket 13
As an initial matter, the Court notes that there is no stay in effect pursuant to 11
U.S.C. § 362(c)(4)(A)(i), as Debtor had two previous Chapter 13 cases dismissed in the previous year. Next, regarding the attorney fee request, LBR 4001-1 (c)(4) states that a motion for relief from stay may not be combined with any other request for relief, absent a court order. Finally, for the reasons set forth in the motion, inter alia Debtor’s multiple bankruptcy filings and refusal to vacate the property, the Court finds that Movant has established bad faith. Accordingly, the Court is inclined to:
-GRANT relief from stay pursuant to 11 U.S.C. § 362(d)(4)
-GRANT request under ¶ 2
-GRANT waiver of FRBP 4001(a)(3) stay;
11:00 AM
APPEARANCES REQUIRED.
Debtor(s):
Howard Edward Terrell Jr. Represented By Brian J Soo-Hoo
Movant(s):
U.S. Bank, National Association as Represented By
Diane Weifenbach
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
VIN: WBAUN1C53BVH82252
(Motion filed 7/27/21)
MOVANT: KINECTA FEDERAL CREDIT UNION
EH
[Tele. appr. Mark Blackman, rep. creditor, Kinecta Federal Credit Union]
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)--
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
Here, Debtor did not file a statement of intention as to the BMW. 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 thirty-day deadline for filing or amending the statement of intention has passed pursuant to 11 U.S.C. § 521(a)(2)(A), the automatic stay as to the BMW has terminated as a matter of law. Therefore, the Court is inclined to DENY the motion as MOOT.
APPEARANCES REQUIRED.
Debtor(s):
Luke E. Kirkendall Represented By Ahren A Tiller
Joint Debtor(s):
Soukkha M. Kirkendall Represented By Ahren A Tiller
Movant(s):
KINECTA FEDERAL CREDIT Represented By Mark S Blackman
Trustee(s):
Steven M Speier (TR) Pro Se
11:00 AM
MOVANT: FORD MOTOR CREDIT COMPANY LLC
EH
[Tele. appr. Sheryl Ith, rep. creditor, Ford Motor Credit]
Docket 9
For the reasons stated in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Andrew Jeffrey Jensen Represented By Norma Duenas
11:00 AM
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Robert Whitmore (TR) Pro Se
11:00 AM
MOVANT: BANK OF THE WEST
EH
[Tele. appr. Mary Tang, rep. creditor, Bank of The West]
Docket 17
For the reasons stated in the motion, the Court is inclined to:
-GRANT request under ¶ 2;
-GRANT waiver of FRBP 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):
Joel Orlando Mejia Represented By Stephen K Moran
11:00 AM
Movant(s):
Bank of the West Represented By
Mary Ellmann Tang
Trustee(s):
Arturo Cisneros (TR) Pro Se
11:00 AM
MOVANT: SELECT PORTFOLIO SERVICING, INC.
EH
[Tele. appr. Trang Phuong Nguyen, rep. Debtor]
Docket 8
11 U.S.C. §362(c)(3) provides, in relevant part, that
on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; and
for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)—
as to all creditors, if--
11:00 AM
. . .
a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1- year period, after the debtor failed to--
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor's attorney);
11 U.S.C. § 362(c)(3)(B), (C)(i)(II)(aa) (emphasis added).
Here, Debtor had one case dismissed in the same year for failure to file required information due to his attorney’s negligence as set forth by declaration. Finding the declaration satisfactory, noting that no relief from stay motions were filed in the previous case, and there is no opposition, the Court is inclined to:
-GRANT continuing the automatic 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):
Mario Jose Juarez Represented By
Trang Phuong Nguyen
Movant(s):
Mario Jose Juarez Represented By
Trang Phuong Nguyen
Trustee(s):
Rod Danielson (TR) Pro Se
2:00 PM
From: 10/23/18, 4/10/19, 10/9/19, 4/22/20, 8/25/20,12/15/20,4/27/21
EH
[Tele. appr. Robert Opera, rep. Debtor/Plan Agent Counsel]
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, 8/25/20, 9/29/20, 1/24/20, 12/1/20,1/20/21, 3/31/21,6/8/21
EH
Tele. appr. Robert Opera, rep. Integrated Wealth Management/Plan Agent Counsel/Debtor]
[Tele. appr. Ronald Ignatuk, rep. Plaintiff]
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 #24 From: 8/10/21 EH
[Tele. appr. Dawn Coulson, rep. Arvind Doshi and Chandrika A. Doshi, Trustees of the Doshi Family Trust, dated 7/24/2006]
[Tele. appr. William Beall, rep. Barstow Daluvoy Mortgage Investors, LP.]
[Tele. appr. Ali Matin, rep. United States Trustee]
[Tele. appr. Donald Reid, rep. Debtor and Reza Safaie, Yucca Valley Property LLC, proposed buyer]
Docket 97
2:00 PM
On December 8, 2020, Raman Enterprises LLC ("Debtor") filed a Chapter 11 voluntary petition. Among the scheduled assets was a parcel of raw land located in Barstow, California (the "Property"). Schedule A identified the value of the Property as $1,950,000. Schedule D identified three creditors holding a security interest in the Property: (1) Santa Barbara Commercial Mortgage (in the amount of $761,099); (2) Arvin Doshi (in an unknown amount)1 and (3) the San Bernardino County Tax Collector (in the amount of $17,631.66)2.
On January 14, 2021, Debtor filed an application to employ a real estate broker; RE/MAX was approved as broker pursuant to order entered February 5, 2021.
On April 20, 2021, Barstow Daluvoy Project Lenders LP filed a motion for relief from stay as to the Property. On May 11, 2021, Debtor filed an opposition. At a hearing held on May 25, 2021, the Court indicated that it was inclined to order relief from stay, but continued the matter for: (a) Debtor to file a supplemental brief; and (b) Debtor to continue marketing the Property. After a continued hearing on June 22, 2021, the Court continued the matter again, for further marketing efforts and for the parties to discuss an agreement. At the third hearing, on July 6, 2021, the Court granted the motion, delaying the effectiveness of the order, entered July 12, 2021, until October 6, 2021.
On July 20, 2021, Debtor filed the instant sale motion. Debtor proposes to sell the Property to Yucca Valley Property, LLC (the "Purchaser") for $1,050,000. Proposed payments from the proceeds include: (1) $47,250 for broker’s commission3; (2)
$15,750 for costs of sale; (3) $17,580.52 for property taxes; and (4) $784,485.31 for Barstow Daluvoy First Mortgage Investors, LP. This distribution leaves $184,934.43 for the estate. The motion does not propose to pay the liens of American Lending, Inc. and The Doshi Family Trust, for the reasons set forth in the discussion section.
2:00 PM
Sale of Estate Property
11 U.S.C. § 363(b)(1) allows a trustee to sell property of the estate outside of the ordinary course, after notice and a hearing. A sale pursuant to § 363(b) requires a demonstration that the sale has a valid business justification. In re 240 North Brand Parners, Ltd., 200 B.R. 653, 659 (B.A.P. 9th Cir. 1996). "In approving any sale outside the ordinary course of business, the court must not only articulate a sufficient business reason for the sale, it must further find it is in the best interest of the estate,
i.e. it is fair and reasonable, that it has been given adequate marketing, that it has been negotiated and proposed in good faith, that the purchaser is proceeding in good faith, and that it is an "arms-length" transaction." In re Wilde Horse Enters., Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal.).
While the motion asserts that the Property was marketed for more than five months, the evidence presented in support of the motion is lacking in any description of the marketing. The Court also notes that the unsigned declaration of the managing member of the Purchaser indicates that the Purchaser has personally known the managing member of the Debtor for several years and has previously discussed purchasing the Property. Finally, the Court notes that the Property is being sold for
$900k less than its scheduled value.
While not directly relevant to the Court’s analysis under § 363(b), the Court notes that page 8, lines 12-13 of the instant motion state that "Debtor intends to distribute the Net Sales Proceeds pursuant to the distribution schemes in the Bankruptcy Code." It is not clear what Debtor means by this statement.
Sale Free & Clear of Liens
11 U.S.C. § 363(f) (2010) states:
2:00 PM
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, Debtor is requesting that the sale be free and clear of the liens of: (i) the County of San Bernardino; (ii) Barstow Daluvoy First Mortgage Investors, LP; (iii) American Lending, Inc.; and (iv) The Doshi Family Trust. Regarding (i) and (ii), Debtor states the sale proceeds are sufficient to satisfy the liens in full, and, therefore, the sale can be approved free and clear of those liens pursuant to § 363(f)(1) and (5).
Regarding the liens of American Lending, Inc. and The Doshi Family Trust, Debtor contends that § 363(f)(4) is applicable because those liens are subject to a bona fide dispute. Importantly, Debtor does not present any analysis or evidence whatsoever regarding this bona fide dispute, nor does Debtor request the Court to take judicial notice of the complaint. Assuming, arguendo, the Debtor include the complaint in the record, Debtor must show that there is an "objective basis for either a factual or legal dispute as to the validity of the debt." See In re Gaylord Grain L.L.C., 306 B.R. 624, 627 (B.A.P. 8th Cir. 2004) (quoting In re Busick, 831 F.2d 745, 750 (7th Cir. 1987).
Here, the complaint filed by Debtor alleges that the granting of deeds of trust to
2:00 PM
American Lending, Inc. and The Doshi Family Trust constitute constructively fraudulent transfers because Debtor did not receive any value in exchange. While Debtor concedes that Debtor was a borrower in the underlying loan documents, Debtor asserts that Debtor’s managing member, Dr. Daluvoy, or his other entities, used all of the loan proceeds for purposes unrelated to Debtor.
As noted by one bankruptcy court, the Court’s inquiry is more complicated than simply determining whether Debtor received the loan proceeds:
In bringing this action the Johnsons contend that they did not receive reasonably equivalent value in exchange for the transfer of the mortgage on their house since it was the corporation and not themselves who received all of the loan proceeds. This argument is without merit. It is well settled that a debtor need not benefit directly in order to receive reasonably equivalent value for a transfer. He may benefit indirectly through benefit to a third person. Williams v. Twin City Co., 251 F.2d 678, 681 (9th Cir.1958), Klein v. Tabatchnick, 610 F.2d 1043, 1047 (2d Cir.1979), Rubin v. Manufacturer's Hanover Trust Co., 661 F.2d 979, 991 (2d Cir.1981).
Johnson v. First Nat’l Bank, 81 B.R. 87, 88-89 (Bankr. N.D. Fla. 1987). The Court notes that this third-party/indirect benefit analysis is a factual inquiry that varies upon the facts of each case, and, in the instant case, Debtor has not provided any admissible evidence or legal argument to support its contention that the liens of American Lending, Inc. and The Doshi Family Trust are in bona fide dispute. As a result, Debtor has not met its burden on this issue.
Additionally, the Court notes that there appear to be further issues regarding additional elements of a constructively fraudulent transfer. For example, the complaint asserts that Debtor became insolvent of a result of the transfers, but the record in this case, for example docket number 26, suggests that Debtor was still solvent after the transactions at issue.
2:00 PM
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).
Miscellaneous Provisions
The Court has reviewed the remainder of Debtor’s miscellaneous requests. The Court has reviewed the request for payment of a reduced broker’s commission and closing costs. The Court notes that the motion states that the proposed broker’s commission is
$47,250 on page 4 and $42,000 on page 10.
The Court has reviewed Debtor’s request for a § 363(m) good faith finding. As stated in the first section of the discussion section, the declaration of Purchaser submitted with the motion is unsigned, and, additionally, raises questions about whether a good faith finding is appropriate.
Movant to supplement the motion to respond to the issues raised in the above tentative.
2:00 PM
APPEARANCES REQUIRED.
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
Movant(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
2:00 PM
Also #23
From: 1/5/21, 4/6/21,4/20/21,5/25/21,6/22/21,7/6/21,8/10/21
EH
[Tele. appr. Dawn Coulson, rep. Arvind Doshi and Chandrika A. Doshi, Trustees of the Doshi Family Trust, dated 7/24/2006]
[Tele. appr. William Beall, rep. Barstow Daluvoy Mortgage Investors, LP.]
[Tele. appr. Ali Matin, rep. United States Trustee]
[Tele. appr. Donald Reid, rep. Debtor and Reza Safaie, Yucca Valley Property LLC, proposed buyer]
Docket 6
- NONE LISTED -
Debtor(s):
Raman Enterprises LLC, a Nevada Represented By
Donald W Reid
2:00 PM
[Tele. appr. Steven Fox, rep. Debtor]
[Tele. appr. Cameron Ridley, rep. U.S. Trustee]
Docket 198
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
From: 3/16/21, 3/30/21,5/25/21,6/29/21,8/10/21
EH
[Tele. appr. Steven Fox, rep. Debtor]
[Tele. appr. Cameron Ridley, rep. U.S. Trustee]
Docket 15
- NONE LISTED -
Debtor(s):
DW Trim, Inc. Represented By Steven R Fox
2:00 PM
Also #28
(OST entered 8/27/21) EH
[Tele. appr. Luke Hendrix, rep Debtor]
[Tele. appr. Everett Green, rep. U.S. Trustee]
[Tele. Kevin Kobbe, rep. creditor, Itria Ventures, LLC]
Docket 4
- NONE LISTED -
Debtor(s):
Bear Valley Ranch Market & Liquor Represented By
J. Luke Hendrix
2:00 PM
(OST entered 8/27/21)) Also #27
EH
[Tele. appr. Luke Hendrix, rep Debtor]
[Tele. appr. Everett Green, rep. U.S. Trustee]
[Tele. Kevin Kobbe, rep. creditor, Itria Ventures, LLC]
Docket 7
- NONE LISTED -
Debtor(s):
Bear Valley Ranch Market & Liquor Represented By
J. Luke Hendrix